People v. Anthony

• Decision Date: 12 January 2015
• Parties: The PEOPLE of the State of New York v. Joseph ANTHONY, Virgilio Bencosme, Jason Cenizal, Michael Hernandez, Marc Manara, Christopher Manzi, Brian McGuckin, Eugene O'Reilly, Jaime Payan, Ruben Peralta, Jeffrey Regan, Luis Rodriguez, Christopher Scott, Defendants.
• Court: New York Supreme Court

47 Misc.3d 375
1 N.Y.S.3d 746

The PEOPLE of the State of New York
v.
Joseph ANTHONY, Virgilio Bencosme, Jason Cenizal, Michael Hernandez, Marc Manara, Christopher Manzi, Brian McGuckin, Eugene O'Reilly, Jaime Payan, Ruben Peralta, Jeffrey Regan, Luis Rodriguez, Christopher Scott, Defendants.

Supreme Court, Bronx County, New York.

Jan. 12, 2015.

1 N.Y.S.3d 748

Stuart Levy, Mary Jo Blanchard, Assistant District Attorneys, Office of the Bronx County District Attorney.

Edward McDonald, Matthew Mazur, Dechert LLP, for the defendants.

STEVEN L. BARRETT, J.

47 Misc.3d 376

All of the above-named defendants are New York City police officers and/or Patrolmen's Benevolent Association (PBA) delegates or trustees who have been indicted and charged with various crimes related to the illegal fixing of summonses given for parking and moving violations. On November 19, 2013, this Court denied defendant's initial motion to suppress evidence obtained through the use of court-authorized eavesdropping. See People v. Anthony, 42 Misc.3d 411, 976 N.Y.S.2d 794 (Sup.Ct.Bx.Co.2013). This Court gave defendants permission to file a second motion to suppress the eavesdropping evidence on the ground that the People failed to comply with the constitutional and statutory requirement to minimize the interception of non-pertinent communications. Defendants now move to suppress approximately 3,000 telephone calls and 1,225 text messages, which were intercepted as a result of eavesdropping on 17 target cell phones belonging to 14 Bronx police officers between December 23, 2009 and December 14, 2010.¹ In the alternative, defendants seek a hearing with respect to the People's compliance with the minimization requirement. For the reasons set forth below, defendant's motion to suppress is denied, without a hearing.²

The minimization requirement has its underpinnings in the Fourth Amendment's prohibition of unreasonable searches and

47 Misc.3d 377

seizures and its mandate that search warrants contain provisions particularly describing the place to be searched and the persons or things to be seized. People v. Floyd, 41 N.Y.2d 245, 249, 392 N.Y.S.2d 257, 360 N.E.2d 935 (1976), citing Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). To satisfy these constitutional concerns, C.P.L. § 700.30(7) requires that an eavesdropping warrant contain a provision that the authorization to intercept shall be conducted in such a way as to minimize the interception of communications not otherwise subject to eavesdropping under Article 700. Minimization has been defined as a good faith and reasonable effort to keep the number of non-pertinent calls intercepted to the smallest practicable number. Id. at 250, 392 N.Y.S.2d 257, 360 N.E.2d 935. The reasonableness of the People's efforts requires a case by case analysis of the particular facts surrounding the interception. Scott v. United States, 436 U.S. 128, 137–39, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). Courts have identified the following factors that bear on the analysis of whether the People's efforts to minimize were reasonable: 1) the scope of the investigation;

1 N.Y.S.3d 749

2) the duration and nature of the conversations; 3) the character and sophistication of the targets of the investigation; 4) the extent of official supervision of the surveillance; and 5) the possibility and practicality of determining, contemporaneously with their interception, whether particular conversations are in fact pertinent to the objectives of the investigation. See People v. Brenes, 42 N.Y.2d 41, 46–7, 396 N.Y.S.2d 629, 364 N.E.2d 1322 (1977). On a motion to suppress eavesdropping evidence, the burden lies with the People to go forward to demonstrate the legality of the police conduct in the first instance, but it is the moving defendant who shoulders the burden of persuasion. People v. DiStefano, 38 N.Y.2d 640, 652, 382 N.Y.S.2d 5, 345 N.E.2d 548 (1976).

With these legal principles in mind, and after an examination of the copious materials submitted in connection with the motion,³ the Court is satisfied that the People have demonstrated that appropriate procedures were established to minimize interception of non-pertinent communications, that a conscientious effort was made to follow such procedures, and that defendants have failed to show that there was an unreasonable interception of a substantial number of non-pertinent communications.

47 Misc.3d 378

The People have made a prima facie showing of compliance with the minimization requirement. In their response to defendants' motion, the People have included a 21–page affirmation of ADA Mary Jo Banchard together with 32 exhibits detailing the efforts that were made to minimize non-pertinent interceptions of both telephone conversations and text messages. Included in the exhibits are affidavits from former ADA Jan Kum, who was the lead attorney of the investigation between December 2008 and November 2010, and Detective Randy Katakofsky, who was assigned to the Internal Affairs Bureau and was the officer in charge of the wire room. (See People's Exhibits 3, 5.) Initially, the Court notes that each of the eavesdropping warrants contained the statutory language of C.P.L. § 700.30(7) that the interception of non-pertinent calls be minimized, and each warrant was supported by an affidavit that contained a provision explaining to the Court the minimization procedures that would be utilized, including the "two minute on, one minute off" method of spot-monitoring telephone conversations.⁴ Throughout the course of the eavesdropping on the target officers, the Court was kept apprised of the People's minimization efforts via the provision of regular progress reports to the Court.

Additionally, according to the Katakofsky, Kum and Blanchard affidavits/affirmation,

1 N.Y.S.3d 750

each monitoring officer was instructed on the minimization procedures before he or she began surveillance duties. Each officer was provided with written minimization instructions and was also instructed orally by ADA Kum or another assistant. After reviewing the written instructions and listening to ADA Kum's lecture, each officer signed the written instructions, which were then posted in the wire room. The written instructions were prepared at the outset of the investigation, when the focus was upon the illegal activities of Police Officer Jose Ramos and Lee King, which included, amongst other activities, the sale of large quantities

47 Misc.3d 379

of marijuana. Thus, the written instructions were prepared at a time when Lee King's telephone was the target of the eavesdropping and the designated crimes pertained to the sale and possession of marijuana, and not to ticket-fixing.

The written instructions included general provisions relating to the spot monitoring of telephone conversations and how to handle privileged communications, conversations between unknown persons, and conversations involving crimes other than the crimes designated in the warrant. (See People's Exhibit 4, Defendants' Exhibit E.) As the Court detailed in its November 19, 2013 decision, in December 2009, when the Court issued the wiretap order with respect to defendant Bencosme's phone, the investigation had transformed from one that had focused on Ramos' illicit conduct to one that focused on ticket-fixing. See People v. Anthony, supra, 976 N.Y.S.2d at 798–99. And, although the People did not reissue written instructions with updated information regarding the new targets and new crimes for which eavesdropping had been authorized, they did convey the change in the focus of the investigation to the monitoring team. According to the Kum and Katakofsky affidavits, when the Court signed the Bencosme warrant on December 23, 2009, Detective Katakofsky informed the monitoring officers of the new target associated with this phone line and that the monitors were now authorized to listen for evidence of grand larceny in connection with ticket-fixing. Over the course of 2010, as the investigation expanded to include additional officers engaged in ticket-fixing, Detective Katakofsky and ADA Kum instructed the monitoring officers with respect to the minimization protocols for any new targets and any new crimes and advised them that conversations relating to ticket-fixing were considered pertinent. (See People's Exhibits 3, 5.) In addition, Detective Katakofsky posted signs in the wire room reflecting the fact that ticket-fixing conversations were pertinent, and he provided the monitoring officers with handouts, which were kept next to the monitoring officers' computer terminals, identifying the telephone numbers associated with the new police officer targets of the investigation. (See People's Exhibits 6, 7, 9 and 10.)

With respect to text messages, the People concede that there were no specific written minimization instructions given. However, the procedure that was implemented was to authorize

47 Misc.3d 380

only Detective Katakofsky to read the intercepted texts.⁵ (See People's...