People v. Beshany

• Decision Date: 13 July 1964
• Citation: 43 Misc.2d 521,252 N.Y.S.2d 110
• Parties: The PEOPLE of the State of New York v. Reuben BESHANY, Allan Feldman, Molly Wenger and Carolyn Oelkers, Defendants.
• Court: New York Supreme Court

Page 110

252 N.Y.S.2d 110

43 Misc.2d 521

The PEOPLE of the State of New York v. Reuben BESHANY, Allan Feldman, Molly Wenger and Carolyn Oelkers, Defendants.

Supreme Court, Criminal Term, Queens County, Part I.

July 13, 1964.

Lawrence Peirez, Woodside, L. I., for defendant Beshany.

Joseph V. Loscalzo, Hampton Bays, L. I. for defendant Feldman.

Frank R. Klein, Kew Gardens, for defendant Wenger.

Thomas P. Cullen, Jamaica, L. I., for defendant Oelkers.

Frank D. O'Connor, Dist. Atty., Queens County, for the People, Engene Feldman, Asst. Dist. Atty., of counsel.

J. IRWIN SHAPIRO, Justice.

This is a motion by the defendant Reuben Beshany, in which the remaining defendants join, 'for an order dismissing the charges contained in the complaints filed against the defendant on the ground that the same are legally insufficient and without probable cause or, in the alternative, for an order suppressing the physical evidence and statements obtained from the defendant as a result of, or incidental, to the arrest of the defendant, pursuant to Section 813-c of the Code of Criminal Procedure, on the grounds that the use of such evidence and statements by the District Attorney upon the trial will be contrary to law and in violation of the constitutional rights of the defendant'.

A hearing was ordered on the motion of the four defendants and the facts found by the Court on the hearing are set forth as an addendum to this opinion and will be referred to hereafter on the questions of law involved only in so far as it is necessary to do so to make this opinion intelligible.

From the evidence adduced at the hearing it appears that certain tangible objects were obtained through a search and seizure--without a warrant--made as an incident to a number of arrests, also without warrants. It further appears that the ability of the law-enforcement officials to demonstrate the existence of probable cause for the arrest depends upon the admissibility of self-incriminating statements made by the several defendants in the course of telephone communications intercepted by the police. The wiretaps by which this was accomplished were authorized by orders of a Justice of the Supreme Court and the defendants now question the sufficiency of the warrant for the judicial sanction thus given to the eavesdropping by which their criminal activities and plans were found out.

Except as permitted by Sec. 739, Article 73 of the Penal Law condemns this form of eavesdropping as criminal. To be exempt from the ban, the interception--under the circumstances disclosed in this case--must be authorized by an ex parte order issued 'upon oath or affirmation of a district attorney * * * that there is reasonable ground to believe that evidence of crime may be thus obtained, and particularly describing the person * * * whose communications, conversations or discussions are to be overheard or recorded and the purpose thereof, and, in the case of * * * telephonic communication, identifying the particular telephone number * * * involved. In connection with the issuance of such an order the justice * * * may examine on oath the applicant and any other witness he may produce and shall satisfy himself of the existence of reasonable grounds for the granting of such application.' Such order is to be effective for the time specified therein, not exceeding two months, unless extended or renewed by the justice who signed and issued the original 'upon satisfying himself that such extension or renewal is in the public interest.' The order, together with the papers upon which the application was based, is to be delivered to and retained by the applicant but a true copy 'of such order' is to be retained by the judge or justice issuing it. In the event of his denial of an application for the order, however, the justice is required to retain 'a true copy of the papers upon which the application was based' (Code Crim. Pro., Sec. 813-a). One of the orders which authorized the interception in the instant case was obtained as an extension of a prior order made September 20th, 1963.

In the application for that original order, an assistant district attorney deposed that on May 2, 1962 one Carolyn Oelkers (also known as Caroline Coleman) had signed an affidavit alleging that three named men 'violated Section 851 of the Penal Law in that defendants obtained money or property with her consent induced by the wrongful use of force or fear. That on May 22, 1962 the said Caroline Oelkers * * * appeared as a witness before the Grand Jury and her testimony was in conflict with the statements made in the aforesaid affidavit and statements made to this office. That your deponent has been informed by the witness, off the record, not before the Grand Jury, that she committed perjury at the time she appeared as a witness before the Grand Jury. That your deponent believes on information and belief that a complaint has been made to the Nassau County Police, 4th Squad, Hewlett, New York. Your deponent is informed and verily believes * * * that such interception will enable the law-enforcement officials of this county to collect further evidence pertaining to the perjury, extortion, attempted extortion, bribery and the obstruction of justice in the aforementioned matter.'

The facts, if any, upon which the conclusions contained in the affidavit were based, were not disclosed by the affiant on whose application the interception-order was issued. The District Attorney thereafter obtained another order, dated October 10, 1963, authorizing the interception of messages transmitted over two different telephone lines listed under the name of Jean Coleman, although installed for the same Carolyn Oelkers. The affidavit upon which the order was issued was almost identical, in its averments, with the affidavit upon which the order of September 20, 1963 was based except, of course, that it referred to two different trunk lines. The extension of the order of September 20, 1963 was effectuated by an order dated October 21, 1963, continuing the interception of the same trunk as described in the original order and was likewise granted upon an affidavit making virtually the same allegations as those embodied in the affidavit in support of the original application. The somewhat unusual situation in which the court and the defendants are fully apprised of the content of the papers by which the interceptions were authorized came about when the assistant district attorney offered them in evidence. (The order of October 21, 1963 and supporting affidavit and the order of October 10, 1963 and supporting affidavit are People's Exhibits 1A and 1B respectively. The order of September 20, 1963 and supporting affidavit was by consent submitted to the Court for its consideration after the hearing and is here deemed to be the Court's exhibit.)

All of the defendants were arrested on November 13, 1963. Thereafter, they were arraigned in the Criminal Court of the City of New York upon complaints charging defendant Oelkers with an 'attempt to violate Sec. 71 Penal Law' about September 10, 1963 to November 13, 1963 at various locations in the County of Queens 'in that, with intent to procure her own miscarriage, she took drugs drugs during that period and on November 13, 1963, went to premises 88-24 Merrick Boulevard for the purpose of having an abortion performed upon her person'; defendants Beshany, Feldman and Wenger were charged with an attempt to commit an abortion upon the person of Carolyn Oelkers by their concerted action (pursuant to their mutual plan) by which defendant Wenger had allowed the use of her apartment for the purpose and defendant Feldman accepted and held $500.00 for the purpose of paying defendant Beshany who, as Feldman knew, had agreed to perform the abortion upon defendant Oelkers for that money; under a separate complaint, all four were charged with a conspiracy to commit an abortion upon the defendant Oelkers. Pending further action in the Criminal Court upon these charges, the defendants moved, in this court, for an order suppressing the physical evidence and statements obtained from the defendants.

At the conclusion of the hearing the defense counsel moved for the exclusion of the contents of the brown bag and such other material evidence as was taken from the Wenger apartment on the evening of the 13th on the ground that they were products of an illegal search and seizure (52). He also moved for the exclusion of any statements made by the defendants, in view of the stipulated facts as to the timing of the attorneys' calls to the police station (52-53).

He also renewed his motion to strike from the record the evidence of the intercepted conversations because of the alleged illegality of the orders authorizing the eavesdropping (53-54).

In opposition, the district attorney contended that the police had probable cause for the arrests which were made but agreed that if the wiretap orders were ineffective 'everything falls by the wayside' (60). Although this 'opinion as to the law is in no sense a concession binding on the court(s)' which may or may not accept the view thus expressed (People v. Mussenden, 308 N.Y. 558, 566, 127 N.E.2d 551, 556, footnote 2), the court's own analysis brings it to the same conclusion.

Upon the facts, as found, the reasonableness of the incidental search and seizure depends on the legality of the prior arrests, without warrants, and for the lawfulness of such arrests the district attorney necessarily relies upon the products of the intercepted telephone conversations for otherwise the police can demonstrate no reasonable cause for believing that felonies had been committed by Allan Feldman and Carolyn Oelkers (Code Crim.Proc., Sec. 177, subd. 4) in that the former had supplied and advised the Oelkers woman to take a drug, with intent to bring about her miscarriage (Penal Law, Sec. 80, subd. 1) and that she, accordingly, had accepted and taken the drug, with...