People v. Basilicato

• Decision Date: 29 December 1983
• Citation: 98 A.D.2d 124,471 N.Y.S.2d 172
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph E. BASILICATO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 172

471 N.Y.S.2d 172

98 A.D.2d 124

The PEOPLE of the State of New York, Respondent, v. Joseph E. BASILICATO, Appellant.

Supreme Court, Appellate Division,

Third Department.

Dec. 29, 1983.

DeGraff, Foy, Conway, Holt-Harris & Mealey, Albany (James F. Downs, Albany, of counsel), for appellant.

Sol Greenberg, Dist. Atty., Albany (John P.M. Wappett, Albany, of counsel), for respondent.

Before SWEENEY, J.P. and MAIN, CASEY, MIKOLL and LEVINE, JJ.

OPINION FOR AFFIRMANCE

CASEY, Justice.

Defendant's plea of guilty followed the denial of his motion to have certain tape recordings of intercepted communications suppressed. On this appeal, defendant contends principally that the trial court erred in failing to suppress the communications. He also argues that the indeterminate sentence of one to four years on each of the gambling counts and a definite one-year sentence on conspiracy, the sentences to run concurrently, were unduly harsh and excessive.

The intercepted communications were obtained pursuant to an eavesdropping warrant issued by the Albany County Court on May 19, 1981 on a specified telephone number. The warrant was supported by the affidavits of two Albany detectives which averred that a confidential informant told one of the detectives that certain described premises were being used by a codefendant for illegal gambling activities. The detectives checked the phone number and had the informant dial it on May 7, 1981 at about 7:00 P.M., and they listened on another line while the informant placed a bet. This procedure was repeated on May 12. One of the detectives swore that before, during and after these calls, he placed the premises under personal surveillance and saw this codefendant enter and remain therein while these calls were being made. Contrary to defendant's claim, the police activity as set forth in the supporting affidavits showed independent observation and confirmation of details of the informant's statement (see People v. Hanlon, 36 N.Y.2d 549, 556, 369 N.Y.S.2d 677, 330 N.E.2d 631) which confirmed criminal activity in respect to the activity itself and the persons allegedly conducting the activity (see People v. Gnozzo, 31 N.Y.2d 134, 140, 335 N.Y.S.2d 257, 286 N.E.2d 706). Furthermore, the affidavit of Detective Milham stated that he knew from his experience that the interception of a single conversation would not result in sufficient evidence of defendant's criminal activities, thereby showing the issuing court that under CPL 700.15 (subd. 4), normal investigative procedures appeared to be unlikely to succeed (see People v. Versace, 73 A.D.2d 304, 308, 426 N.Y.S.2d 61). Therefore, the eavesdropping warrant was issued on what we consider to be sufficient grounds.

Following issuance of the warrant, more than 30 hours of conversation were recorded. Defendant contends that by installing the recording device in the telephone itself, the officers knew that the recording device would be converted from a "wiretap" to a "bug" when defendant, as was done here on June 1, 1981, removed the phone from its cradle to prevent incoming calls from interrupting his and his codefendant's personal conversations. In defendant's view, the conversations thus recorded were not within the area of interception authorized by the warrant. In this regard, it must be emphasized that the police did not cause the situation. Since the police had the authorization to install the wire tap in the phone in the manner in which they did, they cannot be faulted when it was defendant who removed the phone from its cradle and thus converted the "tap" to a listening device or "bug" (see People v. Di Stefano, 38 N.Y.2d 640,...