People on Information of Hargraves v. Basciano

CourtNew York Court of Special Sessions
Writing for the CourtROBERT W. CACACE
Citation62 Misc.2d 546,309 N.Y.S.2d 615
Decision Date26 March 1970
PartiesThe PEOPLE of the State of New York on the Information of Det. Thomas HARGRAVES, Complaint, v. Vincent BASCIANO, Defendant.

Page 615

309 N.Y.S.2d 615
62 Misc.2d 546
The PEOPLE of the State of New York on the Information of
Det. Thomas HARGRAVES, Complaint,
v.
Vincent BASCIANO, Defendant.
Yonkers Court of Special Sessions.
March 26, 1970.

Page 616

Carl A. Vergari, Dist. Atty., Westchester County, by John A. Mastrangelo, Asst. Dist. Atty., for the People.

Lanna, Coppola & Rosato, by Vincent W. Lanna, Yonkers, for defendant.

ROBERT W. CACACE, Judge.

This is a motion to suppress based on the ground that a search warrant was illegally obtained for the reason that the issuance of the warrant was based upon information obtained by the Police as a result of a Court ordered tap on Defendant's telephone. The gravamen of the motion is that by virtue of Title 47, Section 605 of the Federal Communications Act (U.S.Code, tit. 47) it is a violation of Federal Law to intercept a telephone communication, whether that interception is sanctioned by the legislature and the courts of a state or not. Section 605 was enacted in 1934, and the pertinent parts read as follows:

'* * * (N)o person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents,

Page 617

substance, purport, effect or meaning of such intercepted communication to any person; * * *'.

The Supreme Court in Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314, determined that Section 605 barred the use of information obtained by a wire tap in the Federal Courts, and in a further decision the Supreme Court held that evidence obtained via wire tap was inadmissible in a Federal proceeding, even though the evidence was obtained by State Officers under a warrant issued by virtue of a State Wire Tap Statute (Section 813--a of the Code of Criminal Procedure), and without the knowledge or acquiescence of Federal authorities (Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126.) Subsequent to the Benanti case (supra) the Supreme Court held that any evidence obtained by State Officers during a search would, if done in such a manner as to violate the Defendant's immunity from unreasonable search and seizure under the Fourth Amendment, be inadmissible in a Federal proceeding, irrespective of scienter on the part of the Federal authorities (Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, decided June 27, 1960.

[62 Misc.2d 547] The right to use evidence obtained in violation of Title 47, Section 605, United States Code, in State Courts, however, remained inviolate as a result of a 1952 decision of the Supreme Court, which held that Section 605 did not apply to the use of information obtained as a result of eavesdropping in State Court proceedings (Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231.)

The State of New York had since 1942 allowed wire tapping as a means of obtaining evidence by virtue of Section 813--a of the Code of Criminal Procedure. On June 12, 1967, Section 813--a of the Code of Criminal Procedure was declared to be in...

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2 practice notes
  • People v. Trief
    • United States
    • United States State Supreme Court (New York)
    • December 9, 1970
    ...392 U.S. p. 385, 88 S.Ct. p. 2100). 4 This point was touched upon in the recent case of People on Information of Hargraves v. Basciano, 62 Misc.2d 546, 309 N.Y.S.2d 615 (Yonkers Court of Special Sessions), in holding Lee v. Florida, supra, and Fuller v. Alaska, supra, currently bar the intr......
  • People v. Blount
    • United States
    • New York County Court
    • October 23, 1971
    ...procedural standards established in the Chimel case. Prospective effect relates to the time of the trial. See People v. Basciano, 62 Misc.2d 546, 309 N.Y.S.2d 615, where the Court said at 548, 309 N.Y.S.2d at 'No issue is raised by the Defendant as to the validity of the tap order in the in......
2 cases
  • People v. Trief
    • United States
    • United States State Supreme Court (New York)
    • December 9, 1970
    ...392 U.S. p. 385, 88 S.Ct. p. 2100). 4 This point was touched upon in the recent case of People on Information of Hargraves v. Basciano, 62 Misc.2d 546, 309 N.Y.S.2d 615 (Yonkers Court of Special Sessions), in holding Lee v. Florida, supra, and Fuller v. Alaska, supra, currently bar the intr......
  • People v. Blount
    • United States
    • New York County Court
    • October 23, 1971
    ...procedural standards established in the Chimel case. Prospective effect relates to the time of the trial. See People v. Basciano, 62 Misc.2d 546, 309 N.Y.S.2d 615, where the Court said at 548, 309 N.Y.S.2d at 'No issue is raised by the Defendant as to the validity of the tap order in the in......

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