People v. Blase, 82-252

• Decision Date: 05 August 1985
• Docket Number: No. 82-252,82-252
• Citation: 492 N.Y.S.2d 464,112 A.D.2d 943
• Parties: The PEOPLE, etc., Respondent, v. Frederick BLASE, Appellant. (Ind.)
• Court: New York Supreme Court — Appellate Division

Page 464

492 N.Y.S.2d 464

112 A.D.2d 943

The PEOPLE, etc., Respondent, v. Frederick BLASE, Appellant. (Ind. No. 82-252)

Supreme Court, Appellate Division,

Second Department.

Aug. 5, 1985.

Alvin L. Spitzer, Spring Valley, for appellant.

Ronald Goldstock, Deputy Atty. Gen., White Plains (Susan Belgard and Joseph Carey, White Plains, of counsel), for respondent.

Before MANGANO, J.P., and GIBBONS, BRACKEN and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Rockland County, rendered April 3, 1984, convicting him of conspiracy in the fourth degree, upon his plea of guilty, and imposing sentence.

Judgment affirmed, and matter remitted to the County Court, Rockland County, for further proceedings pursuant to CPL 460.50(5).

Appellant and three codefendants were charged with conspiracy in the fourth degree, predicated upon allegations that the conspirators planned to purchase and resell cocaine for profit. The indictment alleged that the following overt acts were committed in furtherance of the conspiracy:

"1. On or about April 20, 1982, in a telephone conversation, the defendant JOSEPH MISTRULLI told another person that, 'I don't want him to take it and put a wack on it and hand it back to us.'

"2. On or about April 20, 1982, in a telephone conversation, JOSEPH MISTRULLI told the defendant PETER GORMAN, 'There's, there's these people, you know, like to play eight ball, you know,' thereby indicating to GORMAN that 'these people' wanted to purchase an eighth of an ounce of cocaine.

"3. On or about April 23, 1982 in a telephone conversation with another person, after that other person asked him '... ya think we, I can get an eighth,' the defendant JOSEPH MISTRULLI answered 'Yeah sure' and 'Yeah, got the cash?'

"4. On or about May 1, 1982, the defendant THOMAS MANULI told the defendant JOSEPH MISTRULLI that he had a quantity of cocaine 'ready to go,' but could not give it to MISTRULLI, 'cause I promised it to this guy.'

"5. On or about May 5, 1982, the defendant FREDERICK BLASE, called the defendant THOMAS MANULI from a pay phone at Vincents Restaurant to determine if a package containing cocaine was ready to be picked up.

"6. On or about July 7, 1982, in a telephone conversation between the defendants THOMAS MANULI and PETER GORMAN, GORMAN told MANULI that, '... I just wanted to find out how much he had ... I didn't want to ask on the phone.' "

By order dated April 26, 1983, the trial court suppressed physical evidence of certain of these telephone conversations obtained through an eavesdropping warrant for the People's failure to timely seal the recordings.

Appellant thereafter pleaded guilty to one count of fourth degree conspiracy in satisfaction of the subject indictment and another indictment. We affirm appellant's conviction.

On appeal, appellant challenges the sufficiency of the indictment. We have determined that his claims lack merit. Although the evidence of the recorded conversations, obtained pursuant to a lawful eavesdropping warrant, was subsequently suppressed, it was competent evidence before the Grand Jury (see, People v. Oakley, 28 N.Y.2d 309, 321 N.Y.S.2d 596, 270 N.E.2d 318; People v. Brewster, 63 N.Y.2d 419, 482 N.Y.S.2d 724, 472 N.E.2d 686; People v. Mauceri, 74 A.D.2d 833, 425 N.Y.S.2d 346; People v. Vega, 80 A.D.2d 867, 436 N.Y.S.2d 748). Thus, the pleaded acts emanating from the suppressed recordings may be considered in determining the sufficiency of the indictment. The six pleaded telephone conversations at issue are acts independent of the agreement to possess and sell cocaine and tend to show...