People v. Bavisotto

• Decision Date: 23 May 1986
• Citation: 502 N.Y.S.2d 867,120 A.D.2d 985
• Parties: PEOPLE of the State of New York, Respondent, v. Robert J. BAVISOTTO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 867

502 N.Y.S.2d 867

120 A.D.2d 985

PEOPLE of the State of New York, Respondent, v. Robert J. BAVISOTTO, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

May 23, 1986.

Kevin Bradley, Canisteo, for appellant.

Larry D. Bates, by Raymond Roberts, Bath, for respondent.

Before DENMAN, J.P., and GREEN, PINE, BALIO and SCHNEPP, JJ.

MEMORANDUM:

On appeal from a judgment of conviction for criminal sale of a controlled substance in the first degree and related offenses, defendant's primary claim is that three eavesdropping warrants were issued without probable cause because the People did not establish "that normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous to employ" (CPL 700.15[4]; CPL 700.20[2][d] ). We disagree. Unlike the conclusory affidavits submitted in support of the eavesdropping warrants in People v. Viscomi, 113 A.D.2d 76, 495 N.Y.S.2d 298, the affidavits and attached exhibits here established that the nature and magnitude of the involvement of defendant and others in drug operations in the Steuben-Chemung County area and the evasiveness of defendant and his associates made it unlikely that normal investigative procedures, such as physical surveillance, undercover operatives or use of a search warrant, would reveal the sources of the drug supply or enable the police to gather evidence against the higher echelon of the drug operation. Under the circumstances of this case, issuance of the eavesdropping warrants was not an abuse of discretion (see People v. Carson, 99 A.D.2d 664, 665, 472 N.Y.S.2d 68; People v. Romney, 77 A.D.2d 482, 484-485, 433 N.Y.S.2d 941; People v. Versace, 73 A.D.2d 304, 307-308, 426 N.Y.S.2d 61; People v. Penna, 53 A.D.2d 941, 942, 385 N.Y.S.2d 400).

We agree with defendant, however, that the evidence was insufficient to support the convictions for conspiracy in the second and fourth degrees respectively under counts two and four of the indictment. Nothing in the November 2, 1980 telephone conversation between defendant and Gina establishes an agreement to sell cocaine to Missien under the second count. Similarly, nothing in the November 6, 1980 conversation between defendant and Gina establishes an agreement to sell marijuana to Gina. Since the crime of conspiracy is an offense separate and distinct from the crime that is the object of the conspiracy (see People v. McGee, 49 N.Y.2d 48, 57, 424 N.Y.S.2d 157, 399 N.E.2d 1177, cert denied sub nom Quamina v. New York, 446 U.S. 942, 100 S.Ct. 2166, 64 L.Ed.2d 797), counts two and four of the indictment must be dismissed (cf. People v. Krasnewicz, App.Div., 498 N.Y.S.2d 670).

We also agree with defendant that evidence of marijuana-related conversations should have been suppressed. The warrant, insofar as it authorized eavesdropping for evidence of such...