People v. Baker

• Decision Date: 06 June 1991
• Citation: 570 N.Y.S.2d 857,174 A.D.2d 815
• Parties: The PEOPLE of the State of New York, Respondent, v. Ronald BAKER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 857

570 N.Y.S.2d 857

174 A.D.2d 815

The PEOPLE of the State of New York, Respondent, v. Ronald BAKER, Appellant.

Supreme Court, Appellate Division,

Third Department.

June 6, 1991.

O'Connell, Wolfe & O'Connell (J. Byron O'Connell, of counsel), Plattsburgh, for appellant.

Robert Abrams, Atty. Gen. (Thomas J. Neidl, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and WEISS, LEVINE, MERCURE and HARVEY, JJ.

MAHONEY, Presiding Justice.

Appeal from a judgment of the County Court of Clinton County (Lewis, J.), rendered October 4, 1990, convicting defendant upon his plea of guilty of the crime of conspiracy in the second degree.

Defendant appeals from the judgment convicting him of second degree conspiracy to sell or possess cocaine. Based primarily upon telephone conversations recorded by eavesdropping surveillance, defendant was indicted, along with several other alleged coconspirators, and charged with second degree conspiracy, fourth degree conspiracy, two counts of fourth degree criminal possession of a controlled substance, 13 counts of third degree criminal possession of a controlled substance and 15 counts of third degree criminal sale of a controlled substance. Defendant's motion to suppress all evidence obtained through the telephone eavesdropping was denied by County Court after a lengthy suppression hearing. Defendant then entered a negotiated plea of guilty to second degree conspiracy in full satisfaction of the indictment and was sentenced to an indeterminate prison term of 3 to 9 years. As part of the plea bargain arrangement, defendant's right to challenge the denial of his suppression motion on appeal was specifically preserved and this appeal followed.

We affirm, as none of defendant's challenges to the telephonic eavesdropping which led to his indictment are sufficiently meritorious to warrant reversal. The suppression hearing minutes reveal that the warrant authorizing the initial wiretapping of defendant's telephone was based on information received by means of a separate wiretap originally placed on the telephone of alleged coconspirator James Weir. Defendant initially contends that the warrant issued for the Weir wiretap was not based on the requisite probable cause. We disagree. The probable cause necessary for the issuance of an eavesdropping warrant amounts to some reasonable ground for someone of reasonable caution to believe that evidence of a crime being committed will be obtained (see, People v. Tambe, 71 N.Y.2d 492, 500-501, 527 N.Y.S.2d 372, 522 N.E.2d 448; People v. Sutton, 32 N.Y.2d 923, 347 N.Y.S.2d 192, 300 N.E.2d 726, cert. denied 415 U.S. 983, 94 S.Ct. 1576, 39 L.Ed.2d 880; People v. Wilkerson, 167 A.D.2d 662, 563 N.Y.S.2d 245). In exercising its considerable discretion in determining the sufficiency of an application for a warrant, a court may rely on those inferences that can be reasonably drawn from the facts alleged in the application, avoiding any hypertechnical construction thereof (see, People v. Tambe, supra; People v. Migenis, 167 A.D.2d 956, 562 N.Y.S.2d 298; People v. Ianniello, 156 A.D.2d 469, 470, 548 N.Y.S.2d 755, lv. denied 75 N.Y.2d 920, 555 N.Y.S.2d 38, 554 N.E.2d 75; People v. Manuli, 104 A.D.2d 386, 387, 478 N.Y.S.2d 712).

Here, the police submitted the sworn affidavit of Robert McNamara, who stated that Weir frequently purchased cocaine from his roommate to distribute, frequently telephoned his roommate to ask about drugs, and once even met with McNamara to execute a sale of four ounces of the roommate's cocaine for $5,000. Such a sworn affidavit from an informant renders inapplicable defendant's Aguilar- Spinelli challenges to the information (see, People v. Bartolomeo, 53 N.Y.2d 225, 233-234, 440 N.Y.S.2d 894, 423 N.E.2d 371; People v. Deliz, 172 A.D.2d 877, 568 N.Y.S.2d 181; cf., Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; People v. Griminger, 71 N.Y.2d 635, 529 N.Y.S.2d 55, 524 N.E.2d 409). Coupled with the additional information gathered from a pen register and police investigation (see, People v. Bachiller, 159 A.D.2d 955, 552 N.Y.S.2d 785, lv. denied 76 N.Y.2d 784, 559 N.Y.S.2d 989, 559 N.E.2d 683), the McNamara affidavit provided adequate probable cause for the Weir wiretap warrant to issue (see, People v. Tambe, supra ).

We likewise find that the eavesdropping warrant issued for defendant's telephone was based on probable cause. Recorded telephone conversations between defendant and Weir, a pen register of defendant's phone calls, and police surveillance placing defendant and Weir together during a parking lot meeting provides the requisite showing from which inferences may be reasonably drawn that defendant was directly involved in the sale and possession of cocaine. Defendant argues that conversations transcribed from the Weir wiretap are so ambiguous as to provide insufficient probable cause to believe that defendant was selling cocaine. Ambiguous conversations may, however, serve as a basis for finding probable cause when they have been given a reasonable interpretation by an experienced investigator (see, People v. Tambe, supra, at 501, 527 N.Y.S.2d 372, 522 N.E.2d 448; People v. Manuli, supra ). Those terms questioned by defendant have common illegal drug connotations and we find the police investigator's interpretation of the conversation plausible and reasonable.

Next, we reject defendant's contention that the police failed to establish that alternative investigative methods had been unsuccessfully attempted, or were unlikely to succeed, before...