People v. Basilicato
| Decision Date | 20 December 1984 |
| Citation | 485 N.Y.S.2d 7,474 N.E.2d 215,64 N.Y.2d 103 |
| Parties | , 474 N.E.2d 215 The PEOPLE of the State of New York, Respondent, v. Joseph E. BASILICATO, Appellant. The PEOPLE of the State of New York, Respondent, v. Joseph CARUCCI, Appellant. The PEOPLE of the State of New York, Respondent, v. Anthony F. PONTORE, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
A warrant authorizing the tapping of a telephone line permits the monitoring of conversations carried on over the telephone but not the monitoring of conversations carried on within the home in which the telephone is located which become audible to the monitoring officers when the telephone receiver is taken off the hook, not for the purpose of engaging in a telephone conversation but to avoid interruption by incoming calls. Nor does the wiretap warrant justify the bugging of such conversations on a "plain view" rationale, absent amendment of the warrant or obtention of a new warrant authorizing such bugging, it being clear to the monitoring officers from the nature of the system, before they hear any conversation, that a telephone communication is not in progress. Moreover, the statutory requirement that tapes be sealed under the direction of the Judge issuing the warrant "upon the expiration of the period" of the warrant (CPL 700.50, subd. 2) is not satisfied when there is no explanation at all for one of the six days that elapsed between expiration of the warrant and sealing, and the People made no effort to contact the Judge on the two weekend days included in that period. Finally, the period of 15 days after arraignment within which the People are required by CPL 700.70 to furnish to defendant a copy of the warrant and accompanying application, failing which the contents of the intercepted communication or evidence derived therefrom may not be received in evidence, may be extended by the trial court only upon good cause shown.
Because the conversations sought to be introduced were outside the scope of the warrant and the statutory requirements referred to were not met, the orders of the Appellate Division, People v. Basilicato, 98 A.D.2d 124, 471 N.Y.S.2d 172; People v Carucci, 101 A.D.2d 614, 474 N.Y.S.2d 962; People v. Pontore, 101 A.D.2d 914, 475 N.Y.S.2d 617, affirming the conviction of each of the defendants should be reversed, the motion to suppress granted and the indictment dismissed.
On May 19, 1981, an eavesdropping warrant was issued by a Judge of the County Court of Albany County, authorizing the tapping of a specified telephone line running into the residence of defendant Anthony Pontore in the Town of Colonie. The supporting affidavits alleged that on May 7, 1981 and May 12, 1981, a Colonie detective had dialed the number and then listened while a confidential informant placed bets on professional basketball games with defendant Joseph Carucci, and that a second detective maintaining surveillance outside the Pontore residence had observed defendant Carucci enter the Pontore house on both occasions, on one of which he was accompanied by defendant Joseph Basilicato. One of the affidavits also detailed the unsuccessful efforts made to secure evidence concerning Carucci's gambling activities by surveillance, by contacting informants and by other investigative procedures.
The warrant issued authorized tapping the line during the period May 25, 1981 to June 23, 1981, and, as required by CPL 700.30, directed minimization by terminating the process when it became apparent that a particular conversation was unrelated to gambling activities. As installed pursuant to the warrant, the tap allowed conversations over the specified number to be picked up on a receiver at Colonie Police Headquarters. The equipment used included a speaker on which the intercepted conversation could be monitored and an automatic recording system on which the conversation was taped. The equipment was activated whenever the telephone receiver in Pontore's residence was taken off the hook and provided a digital display of any number dialed when an outgoing call was made.
On two occasions the equipment was activated by removal of the receiver from the hook, apparently to avoid interruption by incoming calls, for no outgoing call was made nor was any incoming call received. That no telephone conversation was in progress on these two occasions was apparent to the monitoring detectives from the absence of any digital display of a number dialed, from a recorded telephone company message stating that the receiver was off the hook, followed by a sustained beeping tone and finally by a clear line which allowed them to overhear and record a face-to-face conversation among the three codefendants. On neither occasion did the detectives terminate their monitoring and recording of the conversation, nor after the first occasion was a new warrant or an amendment of the existing warrant sought to permit bugging as well as wiretapping.
Based on the incriminating material thus recorded, the three defendants were indicted for promoting gambling in the first degree, promoting gambling in the second degree and for conspiracy in the fifth degree. All three moved to suppress the evidence derived from the wiretap on the grounds that probable cause had not been established and that minimization requirements had not been complied with. Defendants Basilicato and Carucci also sought suppression on the ground that the prosecutor had not provided them with a copy of the warrant and the application on which it was based within 15 days of arraignment as required by CPL 700.70. The prosecutor's response to the last claim was to serve defendants 23 days after arraignment with the required papers and file an affidavit which asserted that defendants had not been prejudiced by the delay, but which offered no explanation for it.
During the ensuing hearing an additional issue was raised regarding the sealing requirement of CPL 700.50 (subd. 2). The warrant expired on June 23, 1981. Detective Milham testified that it took two days to complete the required paperwork (a two-page sealing order, a two-page affidavit and a document described as a "compliance order" to be affixed to the box in which the tapes were to be stored), and that on June 25 he took the tapes to the District Attorney's office where he and the District Attorney sealed each separate container with a metal seal. The District Attorney, however, testified that Milham brought him the tapes on Friday, June 26, and the discrepancy was never explained. He agreed that he and Milham had placed each separate tape in a box which was fastened with a metal seal, a task which was completed during the early part of Friday afternoon. He testified that he then attempted to contact the Judge who had issued the warrant to obtain his approval of the sealing, calling the Judge's chambers several times. Each time he was told by the Judge's secretary that the Judge was on the Bench, but, although the courtroom and the District Attorney's offices are in the same building, he made no attempt to send a note up to the Judge nor did he ask to speak with him during a trial recess. Eventually he left for an unspecified appointment, without arranging to see the Judge at the end of the day or delegating the task to an assistant. No further efforts were made over the weekend, and thus the sealing of the tapes was not judicially approved until the morning of Monday, June 29, six days after the warrant had expired.
The hearing Judge found no violation of the sealing requirement. Holding that the two-day delay until June 25 was justified "by the extensive paperwork required to be done to obtain a sealing order", he also ruled that the District Attorney had been unable to contact the issuing Judge, "despite diligent efforts," until June 29. No mention was made of the discrepancy regarding when the District Attorney received the tapes from Detective Milham. He also ruled that probable cause for issuance of the warrant had been shown and that because Basilicato and Carucci had not been prejudiced by the minor delay beyond 15 days in providing them with copies of the warrant and accompanying application, there was no defect in that regard. Finally, after noting that defendants had limited their lack of minimization claim to the argument that the two nontelephonic background conversations should not have been recorded, the court decided that a "logical corollary to the 'plain view' doctrine" required denial of the suppression motion in that respect.
Thereafter, each defendant pleaded guilty to two counts of promoting gambling in the first degree and one count of conspiracy in the fifth degree, and after sentencing, appealed to the Appellate Division. That court, on essentially the same reasoning as that of the hearing Judge, affirmed in each case. Defendants appeal by leave of a Judge of this court. We conclude that suppression is required because (1) an eavesdropping warrant which authorizes interception of telephonic communication does not permit interception of a nontelephonic face-to-face conversation heard over the telephone wire when the receiver was left off the hook, (2) the sealing requirements of the statute were not met, and (3) the People failed to show any cause for their delay in serving on defendants a copy of the warrant and accompanying papers.
The eavesdropping warrant in this case authorized the District Attorney "to obtain by the wiretapping of the said telephone lines" conversations pertaining to specified crimes. All that it permitted, therefore, was "the intentional...
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