People v. Baris
| Decision Date | 04 April 1986 |
| Citation | 500 N.Y.S.2d 572,116 A.D.2d 174 |
| Parties | PEOPLE of the State of New York, Respondent, v. John BARIS, Appellant. PEOPLE of the State of New York, Respondent, v. Daniel CREACO, Appellant. PEOPLE of the State of New York, Respondent, v. Mary Lou ENTWISTLE, Appellant. PEOPLE of the State of New York, Respondent, v. Salvatore A. INSERRA, Appellant. PEOPLE of the State of New York, Respondent, v. Edward A. PARKER, Appellant. PEOPLE of the State of New York, Respondent, v. Osvaldo ("Tony") PARDO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
George F. Aney, Herkimer, Dean L. Gordon, New Hartford, for appellant Salvatore A. Inserra.
Frank Policelli, Utica, Paul R. Shanahan, Syracuse, for appellant Edward A. Parker.
Emil M. Rossi, Wiles, Fahey & Lynch, Syracuse, for appellant Osvaldo ("Tony") Pardo; Joseph Fahey, of counsel.
Barry M. Donalty, Utica, for respondent; Michael Daley, of counsel.
John Longeretta, Utica, for appellant John Baris.
Leslie R. Lewis, Utica, for appellant Daniel Creaco.
Frank E. Blando, Utica, for appellant Mary Lou Entwistle.
Before CALLAHAN, J.P., and DENMAN, BOOMER and SCHNEPP, JJ.
In these multi-defendant appeals myriad related issues are raised concerning the existence of probable cause for eavesdropping and search warrants and compliance by the prosecution with various requirements of CPL article 700.
After the police uncovered an extensive cocaine trafficking conspiracy among the defendants they were charged in six separate indictments with controlled substances related crimes. Edward A. Parker and Mary Lou Entwistle, who resided together in Oneida County, were charged with possessing large amounts of cocaine which they received from defendant Osvaldo A. Pardo who lived in Florida. The other defendant John Baris, Daniel E. Creaco, Jr., and Salvatore A. Inserra also resided in Oneida County and participated in the operation by buying drugs from Parker and reselling them. On August 30, 1983 the State Police arrested Parker and seized from his home in rural Remsen, New York approximately 26 pounds of cocaine with an estimated street value of $10 million. In addition to Parker the State Police also arrested his girlfriend Entwistle, and Baris, Creaco and Inserra. Pardo, who was arrested on August 31, 1983 on a Federal warrant, was arraigned on the State charges following his indictment by an Oneida County Grand Jury. The raid on Parker's residence was the culmination of a long investigation over a period of several months which involved undercover drug buys from persons suspected of dealing with Parker, the development of information from an informant and the extensive use of a wiretap on Parker's telephone. Following the denial of their motions to suppress evidence obtained pursuant to three eavesdropping and five search warrants issued between June 14 and September 1, 1983, the defendants pleaded as follows in satisfaction of these various indictments: Baris, Creaco and Entwistle to conspiracy in the second degree; Inserra to criminal possession of a controlled substance in the second degree; Parker to criminal possession of a controlled substance in the first degree; and Pardo to criminal sale of a controlled substance in the second degree and conspiracy in the second degree.
In January 1983 the State Police commenced an investigation after they were apprised that the Utica City Police had obtained drug information regarding Parker. On or about April 6, 1983 undercover State Trooper Orlando D'Elia learned from a confidential informant, Joseph Santillo, that Parker was dealing in large quantities of cocaine. Santillo, who accurately identified other individuals as cocaine dealers and arranged for D'Elia to make drug purchases from these individuals, informed D'Elia that Parker dealt "approximately 20 kilos of cocaine a month" from his home in Remsen and that a year previously he was in Parker's house and witnessed the sale by Parker of one ounce out of a kilo of cocaine to Creaco. Santillo agreed to work with D'Elia in an attempt to infiltrate Parker's narcotics operation. Later in April D'Elia attempted to purchase cocaine from Creaco; however, after initially agreeing to sell the cocaine, Creaco refused to go through with the transaction because he had heard that D'Elia was "wired to the police". On April 26, 1983 Santillo introduced D'Elia to Walter Raymond who agreed to sell him cocaine. According to D'Elia, Raymond claimed that Parker was his direct supplier. Raymond sold cocaine to D'Elia on April 28, May 3 and May 17, 1983.
The State Police attempted to establish independently whether Raymond actually was dealing with Parker by arranging to purchase a large quantity of cocaine from him on May 17, 1983 at a bar near Parker's house and setting up a surveillance in the vicinity of the Parker residence in an effort to verify whether Raymond visited Parker's house. 1 D'Elia received a prearranged call from Raymond at 6:50 p.m. during which Raymond claimed he was calling from Parker's residence. At that time the surveillance had been established near Parker's residence to verify that Raymond was there at the arranged time but the effort was terminated "due to the remoteness of the area, and a sudden increase in traffic" and it was implied that the surveillance was discontinued before 6:30 p.m. It was later disclosed, however, that the surveillance was in place from 5:30 p.m. until approximately 7:40 p.m. during which time Raymond was not observed in the vicinity of the Parker residence.
On June 14, 1983 the Oneida County District Attorney applied under CPL 700.20 to Oneida County Court Judge Arthur A. Darrigrand for an eavesdropping warrant to authorize the tapping of Parker's home telephone. The affidavits in support of the application recited the information learned from Santillo and Raymond that Parker sold large quantities of cocaine from his house. State Police Investigator Michael Navin added information obtained from a pen register that Parker's phone had been used to place calls to the phones of individuals identified by the FBI as suspected drug dealers. 2 The court approved the application and issued a warrant on June 14 which provided for the interception of phone calls relating to the possession and sale of controlled substances and conspiracy related to those offenses. The warrant recited that normal investigative techniques would be unavailing, that the warrant should be executed so as to minimize the interception of communications unrelated to the charges and that if a pattern of communications related to unlawful narcotics activity could be established then use of the wiretap should be restricted "to such established times". The warrant also provided that "if from such established pattern, continued seizures are not necessary for a period of time * * * authorization is given to discontinue such seizure" and that the warrant was otherwise effective for 30 days.
The wiretap was installed on June 16, 1983. Between June 16, and July 12, 1983 the State Police intercepted a number of conversations which they believed were related to drug trafficking and submitted transcripts of these conversations to Judge Darrigrand as part of the application on July 12, 1983 for an extension of the eavesdropping warrant. The most significant phone conversation occurred on June 24 between Parker and a party identified as Chris Openheimer of Homestead, Florida. The transcript of this conversation reveals that Openheimer asked Parker whether he remembered "those kinds of plants that Jack and Jeff brought up to you." Parker indicated that he did and Openheimer said that friends of his "just found * * * 200 out in the woods." Openheimer offered to sell them for "forty a piece" but Parker replied that he was "pretty stocked up" and that his prices had dropped; he offered to buy "10 at 25". Navin alleged that this "guarded" conversation was really about kilos of cocaine and he reported learning from identified law enforcement officials in Florida that Openheimer operated a botanical nursery which may have been a front for illegal activities.
Parker also had conversations with Creaco on June 22 and July 6, 1983 and with another person on June 21 referring to the sale of "yellow paint", which Navin interpreted as related to drug transactions. 3
The formal application by the District Attorney for the extension of the eavesdropping warrant incorporated by reference the original moving papers dated June 14, 1983 together with Navin's affidavit of July 12, 1983 with the attached transcripts. It appears from this application that the full extent of the drug activity involving Parker had not been determined and that Trooper D'Elia was continuing his efforts to arrange a direct buy from Parker through Raymond. On July 13, 1983 the court granted the requested extension for 30 days subject to "all provisions and restrictions as contained in the Original Eavesdropping Warrant dated June 14, 1983".
Between July 13 and August 12, 1983 the State Police intercepted a number of phone calls implicating all the defendants in drug trafficking. However, during the first week of August they also developed strong evidence that Raymond had been lying to them about dealing directly with Parker. At that time D'Elia was still trying to arrange a buy through Raymond and was with Raymond when he allegedly made a call to Parker's residence. When the call was not recorded on the wiretap the State Police realized Raymond had faked the call and that he was probably not dealing with Parker. The investigators also knew that neither the pen register nor the wiretap had uncovered a single phone call between Raymond and Parker.
On August 12, 1983 the District Attorney applied to Judge Darrigrand for a second 30-day extension of the eavesdropping warrant incorporating by reference the two previous warrants and the papers on which they were based and...
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