People v. Broady

• Decision Date: 09 April 1959
• Citation: 5 N.Y.2d 500,158 N.E.2d 817,186 N.Y.S.2d 230,74 A.L.R.2d 841
• Parties: , 158 N.E.2d 817, 74 A.L.R.2d 841 PEOPLE of State of New York, Respondent, v. John G. BROADY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 230

186 N.Y.S.2d 230

5 N.Y.2d 500, 158 N.E.2d 817, 74

A.L.R.2d 841

PEOPLE of State of New York, Respondent, v. John G. BROADY, Appellant.

Court of Appeals of New York.

April 9, 1959.

Harris B. Steinberg and Leo H. Hirsch, Jr., New York City, for appellant.

Frank S. Hogan, Dist. Atty., New York City (Richard G. Denzer and Harold Roland Shapiro, New York City, of counsel), for respondent.

FROESSEL, Judge.

Defendant was convicted of (1) one count of conspiracy in violation of subdivision 1 of section 580 of the Penal Law, Consol.Laws, c. 40; (2) 11 counts of aiding and employing others to wire tap unlawfully in violation of subdivision 6 of section 1423 of the Penal Law; (3) 2 counts of using rooms and apparatus for unlawful wire tapping in violation of subdivision 6 of section 1423 of the Penal Law; and (4) 2 counts of unlawfully possessing wire-tapping instruments in violation of section 552-a of the Penal Law; ¹ and sentenced to a total term of two to four years.

The evidence showed that with the aid of two telephone company employees, Ruh and Asmann, and an expert on telephonic communications and recording devices maned Shannon, the defendant, who was an attorney and a private investigator, established and maintained wire-tapping plants in two apartments in midtown Manhattan. Taps wert placed on the telephones of business concerns such as Bristol-Meyers, E. R. Squibb, Inc., the Knoedler Art Galleries and private individuals, including the chairman of the board of Pepsi-Cola. Numerous recordings of telephone conversations were made for the purpose of securing information of value to defendant's clients.

All three accomplices testified against defendant. The testimony of other witnesses established, among other things, that defendant had rented one of the apartments under an assumed name and that special wiring had been installed there; that defendant employed messengers to transport packages containing recordings of conversations, according to Shannon from one of the apartments used as a wire-tapping headquarters to defendant's office; and that defendant had negotiated with clients or prospective clients to supply them with information about the persons and concerns whose telephones were tapped. Defendant does not contest the legal sufficiency of the proof on this appeal, but attacks the validity of his conviction on other grounds.

His first contention relates to the meaning of the word 'wilfully' in subdivision 6 of section 1423 of the Penal Law. That subdivision, as it read when the offenses were committed, made it a felony punishable by two years' imprisonment to 'unlawfully and wilfully cut, break, tap, or make connection with any telegraph or telephone line, wire, cable or instrument, or read or copy in any unauthorized manner any message, communication or report passing over it, in this state' (emphasis supplied). The trial court charged the jury that "Wilful' does not mean that a person does an act motivated by feelings of spite, malice or hate. It merely means intentionally doing an act and knowing that the act is being done.' An exception to the above definition was taken by the defense attorney.

Defendant argues that the word 'willfully', as used in subdivision 6, means "wantonly' and 'maliciously', as differentiated from merely 'intentionally' or 'knowingly", and that, because of the erroneous nature of its charge, the trial court 'failed to submit an essential element of the crime to the jury for its consideration'. He also argues for the first time that 'wilfully' must be interpreted to mean 'maliciously' to save the constitutionality of said subdivision 6 of section 1423 since if the statute is construed as intended to protect the privacy of telephone conversations as contended by respondent rather than as a malicious mischief statute 'intended to prevent harm to local property' as contended by defendant then it was pre-empted by the enactment of section 605 of the Federal Communications Act, 47 U.S.C.A. § 605 and offends the supremacy clause of the Federal Constitution (art. VI, par. 2). He bases this contention on three decisions of the Supreme Court of the United States (Benanti v. United States, 1957, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126; United Auto etc., Workers v. Wisconsin Employment Relations Bd., 1956, 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162; Com. of Pennsylvania v. Nelson, 1956, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640) which were handed down between April 2 1956 and December 9, 1957, before the affirmance by the Appellate Division in this case on May 13, 1958 (6 A.D.2d 674, 174 N.Y.S.2d 218).

Section 1423 is found in article 134 of the Penal Law, entitled 'Malicious Mischief'. That part of the section prohibiting wire tapping was inserted in 1892, long after the property damage provisions were enacted (Report of N. Y. State Joint Legislative Committee to Study Illegal Interception of Communications, N.Y.Legis.Doc., 1956, No. 53, p. 13). The various subdivisions of section 1423 define a host of offenses involving injury or damage to highways, bridges, dams, sewers, telephone or telegraph lines and the like. All of these offenses, according to the language of the statute, must be committed 'wilfully or maliciously' (emphasis supplied), except certain offenses like wire tapping, specified in subdivision 6, which must be committed 'unlawfully and wilfully'.

The word 'wilfully', as used in the phrase 'wilfully or maliciously' in section 1423, has been held to include the element of malice Wass v. Stephens, 128 N.Y. 125, 129, 28 N.E. 21, 23. That case, however, was decided in 1891, when every act in the statute had to be committed, according to its terms, 'wilfully or maliciously'. It was not until the following year (L.1892, ch. 372) that the statute (then Penal Code, § 639, subd. 7) was amended to include the telephone, and as to the tapping of a telephone the amendment merely required that it be done 'unlawfully and wilfully'. And in People v. Senes, 210 App.Div. 845, affirmed 242 N.Y. 556, 152 N.E. 425, which apparently was the only conviction for wire tapping ever reported in this State prior to the instant case (see N.Y.Legis.Doc., 1956, No. 53, supra, pp. 14, 29), while the trial court instructed the jury that the word 'wilfully', as used in the phrase 'unlawfully and wilfully' in section 1423, included a malicious intent to injure someone, the correctness of this charge was not raised on appeal since it was most favorable to defendant. No appellate court in this State has ever imported the element of malice into the word 'wilfully' as used in the phrase 'unlawfully and wilfully' in subdivision 6 of section 1423. By specifying that the crime of wire tapping was committed when one acted 'unlawfully and wilfully', in contradistinction to the many crimes of property damage outlined in section 1423, which required that a person act 'wilfully or maliciously', it is fair to assume that the Legislature indicated that the word 'wilfully', as used in subdivision 6, meant deliberately, as opposed to maliciously or viciously.

Moreover, in People v. Applebaum, 277 App.Div. 43, 97 N.Y.S.2d 807, affirmed 301 N.Y. 738, 95 N.E.2d 410, it was recognized that subdivision 6 of the section 1423 was intended to protect the privacy of telephone conversations as well as to prohibit physical damage to telephone equipment. Defendant here concedes in effect that if the statutory provision prohibiting wire tapping was aimed at invasions of privacy, then the element of malice or spite, a natural ingredient of the many crimes of property damage listed in section 1423, would not be comprehended in the word 'wilfully' as used in subdivision 6 of section 1423.

In 1957 the crime of wire tapping was taken out of subdivision 6 of section 1423 and placed in a new article and section of the Penal Law (art. 73, § 738) entitled 'Eavesdropping'. The 1957 Interim Report of the Joint Legislative Committee on Illegal Interception of Communications (N.Y.Legis.Doc., 1957, No. 29, p. 13 et seq.), insofar as relevant here, emphasized that one of the purposes of the proposed legislation, subsequently enacted into law, was to 'Consolidate present scattered laws on interception of communications' (p. 14), including 'the rephrasing of the present law against wiretapping, now inappropriately classified as malicious mischief, along with damage to sewers, water mains, and piers.' (P. 16, emphasis supplied.) One of the objectives of the consolidation was to 'make it clear that the evil of wiretapping is not merely in the offense against property but particularly in the violation of privacy the eavesdropping.' (P. 14, emphasis supplied.)

We think it beyond dispute that the prohibition against wire tapping, as it existed in subdivision 6 of section 1423, was primarily designed to protect the privacy of telephone conversations. This being so, the word 'wilfully', carried over from subdivision 6 of section 1423 into the new statutory section forbidding 'eavesdropping', would logically refer to an act consciously and deliberately done and would not include the element of malice. The invasion of privacy implicit in wire tapping is the same, whatever the motives of the unauthorized tapper may be.

This brings us to the more serious question involved in this case, namely, whether the prohibition against wire tapping contained in subdivision 6 of section 1423, intended to prevent invasions of privacy, was pre-empted by section 605 of the Federal Communications Act. That Act was enacted by Congress in 1934 (48 U.S.S.tat. 1064, 1103; 47 U.S.C.A. § 151 et seq.) and its main purpose was 'to extend the jurisdiction of the existing Radio Commission to embrace telegraph and telephone communications as well as those by radio.' Weiss v. United States, 308 U.S. 321, 328, 60 S.Ct. 269, 272, 84 L.Ed. 298; see, also, Benanti v. United States, 355 U.S. 96, 104, n. 14, 78 S.Ct. 155, supra. The Supreme Court has...