People v. Brown

• Citation: 650 N.Y.S.2d 836,233 A.D.2d 764
• Parties: The PEOPLE of the State of New York, Respondent, v. Julian BROWN, Appellant.
• Decision Date: 27 November 1996
• Court: New York Supreme Court — Appellate Division

Page 836

650 N.Y.S.2d 836

233 A.D.2d 764

The PEOPLE of the State of New York, Respondent, v. Julian BROWN, Appellant.

Supreme Court, Appellate Division,

Third Department.

Nov. 27, 1996.

Adam Abelson, Ithaca, for appellant.

William J. Comiskey, Organized Crime Task Force (Lynn Goodman, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and CASEY, YESAWICH, SPAIN and CARPINELLO, JJ.

MIKOLL, Justice Presiding.

Appeal from a judgment of the Supreme Court (Monserrate, J.), rendered June 16, 1994 in Tompkins County, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the second degree.

Following a lengthy investigation conducted by the State Police, the State Organized Crime Task Force and the Cortland County Sheriff's Department, defendant was indicted in June 1992 with four other individuals and charged with participating in an organized narcotics distribution ring that transported cocaine from New York City to Tompkins County for distribution. The indictment alleged that defendant committed the crimes of: conspiracy in the second degree, criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the first degree, two counts of criminal possession of a controlled substance in the third degree and attempted possession of a controlled substance in the first and third degrees.

Defendant's pretrial motions to, inter alia, suppress certain eavesdropping evidence acquired during the investigation because the police allegedly had failed to exhaust conventional investigative techniques prior to seeking issuance of the eavesdropping warrants was denied by County Court. Subsequently, pursuant to a negotiated plea agreement, defendant waived his right to appeal all issues with the exception of his claim that the application for the eavesdropping warrant had failed to establish that all normal investigative techniques had been exhausted and, consequently, the evidence gathered as a result of the warrant should have been suppressed. Defendant was sentenced as a predicate felon to serve a term of six years to life imprisonment. This appeal ensued.

Defendant's contention that County Court erroneously denied his motion to suppress the eavesdropping warrant because the application made by the People did not sufficiently demonstrate that conventional means of investigation had been tried and exhausted is without merit. To satisfy the requirements for issuance of an eavesdropping warrant set forth in CPL 700.15(4) and 700.20(2)(d), the applicant need not make a showing that every conceivable method of investigation has been tried and failed (see, People v. Moon, 168 A.D.2d 110, 112, 571 N.Y.S.2d 580, lv. denied 78 N.Y.2d 1078, 577 N.Y.S.2d 242, 583 N.E.2d 954). Rather, the requirements are satisfied by establishing "the nature and progress of the investigation and * * * the difficulties inherent in the use of normal law enforcement methods" (id., at 112, 571 N.Y.S.2d 580; see, People v. Baker, 174 A.D.2d 815, 817, 570 N.Y.S.2d 857, lv. denied 78 N.Y.2d 920, 573 N.Y.S.2d 472, 577 N.E.2d 1064; People v. Rumpel, 111 A.D.2d 481, 482, 488 N.Y.S.2d 867).

The record demonstrates compliance with these criteria in this case. The affidavit of Investigator John Toomey of the State Police Bureau of Criminal Investigation, submitted on the application for the warrant, set out facts showing, inter alia, the actions previously taken by police in the investigation of defendant's involvement in the sale of controlled substances and the reason why the eavesdropping procedures were required to discover the full extent of the narcotics trafficking involving defendant. The affidavit demonstrates that normal investigative procedures had been tried including surveillance, seizure of cocaine, written records, telephone tolls from the premises and pen register analyses, which proved ineffective in accomplishing the goals of the investigation, that is, discovering evidence of the conspiracy in dealing with controlled substances. The police were unable to identify the suppliers, sellers and purchasers of cocaine and marihuana in this particular distribution network; to pinpoint the identity of all individuals participating in the transfer of the proceeds of...