People v. Blanda
| Citation | 362 N.Y.S.2d 735,80 Misc.2d 79 |
| Parties | The PEOPLE of the State of New York v. Andrew Joseph BLANDA, Defendant. |
| Decision Date | 16 December 1974 |
| Court | New York Supreme Court |
Charged in a five-count indictment (#74--127) with various crimes of promoting gambling in the first and second degrees (Penal Law, §§ 225.10, 225.05) defendant Blanda moves pre-trial to suppress nine (9) tape recordings (CPL 710.20(2)), the product of telephonic interceptions, obtained in pursuance of an eavesdropping warrant issued by the Honorable Edward O. Provenzano, Monroe County Judge, on August 28, 1973.
Defendant's claims of error relate to alleged failures on the part of the police and court to fully comply with the statutory provisions as to delivery, custodial care and ensealing of the recordings returned to the issuing justice, (CPL, Art. 700; cf., People v. Nicoletti, 34 N.Y.2d 249, 356 N.Y.S.2d 855, 313 N.E.2d 336, decided June 10, 1974).
No claim is made at this juncture that the tape recordings have been altered or tampered with. In this regard, the defendant's rights to move against the authenticity of the tapes have been reserved, pending defendant's examination and review of the same under direction of the court. Also reserved are the defendant's rights to move against the validity of the underlying eavesdropping warrant.
Plenary hearings have been held upon the issues presently raised. From these hearings clear and convincing evidence reveals the following:
Surveillance by a Special Criminal Investigation Section of the Rochester Police Department of defendant's premises and person at 193 Rutgers Street in the City of Rochester, together with reports from reliable informants during the winter, spring and summer of 1973, culminated in the issuance of a thirty-day eavesdropping warrant on August 28, 1973. The combined warrant and order permitted telephonic surveillance of telephone communications transmitted and received by defendant, Andrew Blanda, over a telephone line bearing Rochester Telephone Number 442--9094, located at the above address.
Interception of in-coming and out-going telephone calls to and from the above-identified telephone number commenced on the same date (August 28, 1973). Police surveillance of the premises continued. Telephonic interceptions, recordings and surveillance, pursuant to the warrant and order were made on August 28, 29, 30, 31, September 3, 4, 5, and 6, 1973. Logs (Peo.Exh. #3) were carefully kept and tape recordings made of all telephone calls (Peo.Exh. #4) by the detectives in immediate charge of the electronic interception device located in the offices of the special investigation unit at the Rochester Public Safety Building. Pursuant to the court's warrant and order, electronic surveillance was confined on each date to the hours of 11:30 A.M. to 2:00 P.M. and 5:30 P.M. to 8:00 P.M.
Following each recording session the officers in charge, detectives Robert J. Wiesner and Daniel P. Brennan, transcribed a duplicate tape of the original recording on another machine and, at the same time, identified and noted the numerical listings of all telephones to which calls were transmitted from the telephone then under surveillance at 193 Rutgers Street.
On each occasion the original of each tape recording thus obtained was placed in an individual plastic container. The plastic containers were digitally marked, #1, #2, #3, etc. Each container carried a label bearing an appropriately printed inscription setting forth the date, the correct time of day in hours and minutes of each recording and the transcribing speed of the tape. On each occasion the plastic containers were stacked together, wrapped in an encircling band of 'evidence' tape, or 'adhesive' tape, initialed and dated by the detective in charge, i.e., in each instance, by Detective Robert J. Wiesner, who then placed the plastic containers in a 4-drawer combination safe file in the office of the detective-in-charge of the Special Investigation Section, Major John Neary.
Detective Wiesner testified that only Major Neary held the combination to the safe file. His testimony was uncontradicted. He also testified that on one or more occasions, following a taping session, and after completing duplication of the tapes at a late hour in the evening he placed the original tapes in his own locker in the offices of the Special Investigation Section; that on the following day he transferred the tapes to Major Neary's safe file, taped, dated and initialed by him as above-described. Detective Wiesner testified that he had the only key to his own locker and that there was no master key. There was no testimony to the contrary.
It is undisputed the police terminated electronic surveillance of the subject telephone on Thursday, September 6, 1973.
On Monday, September 10, 1973 the tape recordings (Peo.Exh. #4) and the intercept logs of telephone calls (Peo.Exh. #3) were delivered by detectives Wiesner and Brennan to the issuing County Judge, the Hon. Edward O. Provenzano, now Justice of the Supreme Court.
Coincidently with the return of the tape recordings (Peo.Exh. #4) and the intercept logs (Peo.Exh. #3) to Judge Provenzano the Special Investigation Section directed the telephone company to disconnect the electronic surveillance device. This was done on the same date, September 10, 1973.
Initially, the defendant contends that the 4-day period, from Friday (September 7, 1973) to Monday (September 10, 1973) constituted an impermissible delay in making delivery of the telephone logs and tape recordings to the 'issuing justice', County Judge Provenzano. Defendant urges that such delay violated the express provisions of CPL § 700.50(2).
Subdivision 2, of section 700.50 of the CPL provides as follows:
'Immediately upon the expiration of the period of an eavesdropping warrant, the recordings of communications made pursuant to subdivision three of section 700.35 must be made available to the issuing justice and Sealed under his directions'. (Emphasis supplied.)
Parenthetically, it may be noted that Judge Provenzano's order and warrant of August 28, 1973 authorized the District Attorney of Monroe County and his specified agents, detectives Robert J. Wiesner and Daniel P. Brennan, 'to eavesdrop on, listen to, overhear, record and make copies of any and all telephone communications * * * made to and from the subject telephone', and among other things, fixed termination of the interception period on the thirtieth day from the date of installation. The order also directed that 'such eavesdropping must terminate upon attainment of the authorized objective, or in any event within thirty days.'
The uncontradicted evidence indicates that, after cessation of surveillance on Thursday (September 6, 1973), Detective Wiesner replayed the last tape in order to log the destination of out-going calls and, simultaneously, made a duplicate copy of the last recording. He testified that he then locked the original and the duplicate recording either in his own locker, or in the Special Investigation Section's safe file.
On the following day, Friday (September 7, 1973) on-site surveillance of the subject residence (193 Rutgers Street) failed to establish the presence of the defendant, Andrew Blanda, the person named in the warrant. No interception was made. Detective Wiesner testified that on that date (September 7, 1973) the District Attorney's Office, in accordance with statutory mandate (CPL § 700.50(3)) notified certain persons, including the subject (Blanda) of the fact and date of the issuance of a prior warrant and order for eavesdropping interception of communications over certain other telephones. Under these circumstances, according to Detective Wiesner, the Special Criminal Investigation Section concluded that the required 90-day notification would alert the defendant (Blanda) and compromise further surveillance of the subject telephone. Therefore, the command-decision was made, in accordance with Judge Provenzano's warrant and order, to terminate the eavesdropping and surveillance of subject's telephone 'upon attainment of the authorized objective.'
Detective Wiesner testified that he was unable to reach Judge Provenzano on Friday, September 7, 1973. This testimony is credible in the light of testimony by Mr. Justice Provenzano to the effect that he had received a call on the morning of Friday, September 7, 1973 from the Office of the Governor informing him of his appointment to the Supreme Court. Conceivably, it would have been difficult to reach the 'issuing justice' following the Governor's call. In any event, Detective Wiesner did not work on Saturday and Sunday, September 8th and 9th.
On Monday, September 10, 1973, Detective Wiesner prepared his report and affidavit of termination of the eavesdropping warrant and delivered the same together with the logs and the recordings (Peo.Exh. #3 and #4) to the 'issuing justice'.
Under the circumstances above-enumerated and upon all the evidence the court is satisfied that the police officers' delivery of the recordings on Monday, September 10, 1973 fully complied with the statutory provisions requiring 'immediate' delivery of the product of the warrant. (CPL § 700.50(2); see also, United States v. Poeta, 2 Cir., 455 F.2d 117.)
The word 'immediately' must be liberally construed. 1 The word 'immediately' does not mean instantaneously. It does mean promptly, within a reasonable time, or with reasonable diligence, dependent upon the circumstances in each case. The credible evidence here suggests no unreasonable delay. The circumstances surrounding the termination of the telephonic interceptions on Thursday, September 6, 1973, the explanation of Mr. Justice Provenzano's unavailability on Friday, ...
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