People v. Butler

• Decision Date: 20 November 1969
• Citation: 33 A.D.2d 675,305 N.Y.S.2d 367
• Parties: The PEOPLE of the State of New York, Respondent, v. Peter BUTLER and Richard Conroy, Defendant-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 367

305 N.Y.S.2d 367

33 A.D.2d 675

The PEOPLE of the State of New York, Respondent, v. Peter BUTLER and Richard Conroy, Defendant-Appellants.

Supreme Court, Appellate Division, First Department.

Nov. 20, 1969.

F. Bosley Crowther, 3rd, New York City, for defendant-appellant butler.

L. K. Feitell, New York City, for defendant-appellant Conroy.

Before EAGER, J.P., and CAPOZZOLI, McGIVERN and STEUER, JJ.

PER CURIAM.

Judgment entered June 15, 1967, convicting defendant Peter Butler of the crime of murder in the first degree as a felony murder, affirmed.

Determination withheld as to appeal from judgment similarly entered as to defendant Richard Conroy, and the matter remitted to the Supreme Court, New York County, for an evidentiary and suppression hearing in accordance with People v. Morhouse, 21 N.Y.2d 66, 286 N.Y.S.2d 657, 233 N.E.2d 705.

In this case, at the beginning of the trial, the District Attorney declared that no evidence or leads had been obtained from wiretaps and that no wiretap evidence would be offered. Upon questioning by the Trial Judge, assurances were developed that the names of no witnesses had been thus obtained. And the Trial Judge, finding that the supporting affidavits were adequate in respect of probable cause, denied the attorney for the defendants permission to examine the police, the order or the affidavits pursuant to which wiretap orders were obtained. On argument of this appeal, we requested production of the applying affidavits, the order, the resulting tapes and further briefs on the law and the facts.

Upon this further submission, we have concluded that the representation of the District Attorney that no evidence or leads were obtained from the wiretaps cannot deprive the defendant Conroy of at least an opportunity to test whether certain concededly illegal taps led to information which was improperly used at the trial. People v. Munger, 24 N.Y.2d 445, 301 N.Y.S.2d 39, 248 N.E.2d 882.

As for the court order dated June 28, 1966, resulting in wiretapping between June 29, 1966 and July 15, 1966, we feel there may be a bare sufficiency of facts, independent of the anonymous phone call, to establish a basis for the reliability of the information divulged by the masked informer and thus sustain this order and preserve it from the interdiction of People v. Horowitz, 21 N.Y.2d 55, 286 N.Y.S.2d 473, 233 N.E.2d 453; see also, People v. Hendricks, 25 N.Y.2d 129, 303 N.Y.S.2d 33, 250 N.E.2d 323. However, even if this order was properly issued and used, there is still the concession of the District Attorney that the second wiretap, based on the affidavit of Lieutenant Sullivan, was patently invalid and that the wiretap operations of July 16, 17 and 18, 1966 were completely unauthorized. As to these latter wiretaps, a hearing is unavoidably in order, to determine whether they produced witnesses and evidentiary matter developed at the trial which stemmed from these extra-legal operations of the police and thus were inadmissible. Particularly, in fairness, there must be a hearing, because in point of chronology, the evidence that was educed at the trial, was clearly elicited, if not developed, only after the dates of these invalid wiretaps.

The foregoing is not applicable or available to the defendant Butler because objection on constitutional grounds to the use of intercepted conversations obtained through eavesdropping devices is personal and limited to a party to the conversation or whose premises are involved. See, Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176; Matter of Selig, 32 A.D.2d 213, 302 N.Y.S.2d 94.

Further, in refusing to grant a new trial in the case of Butler, we are not unaware of the pertinency of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, 7 A.L.R.3d 174. We note that at the outset of the trial, the District Attorney made no secret of his possession of certain tapes. But we feel the Rosario rule was not transgressed because we perceive no inconsistency between the actual testimony of the witness Richardson on the stand and what she purportedly said in the tapes; the tapes, strictly speaking, did not relate to the subject of her testimony; and their only possible use would have been for the purpose of cumulatively indicating bias.

We note further the Court of Appeals in Rosario, notwithstanding its rationale, refused to upset the conviction. Said the court (p. 291, 213 N.Y.S.2d p. 452, 173 N.E.2d p. 884):

'This court is exceeding slow to disregard error as harmless under section 542 of the Code of Criminal Procedure, particularly in a capital case. However, in the one before us, we are as convinced as judges may ever be, in view of the overwhelming proof of guilt and the absence of any real inconsistency between prior statement and trial testimony, that the jury would not have decided the case differently even if defense counsel had had the use of the statements in question. In other words, it may not be said that any substantial right of the appellant was prejudiced by the trial court's erroneous ruling.

'The judgment of conviction should be affirmed.'

We think that in the case of Butler, we can do no other. He was the actual malefactor. He fired the gun. The evidence against him is so conclusive it is not susceptible of disturbance by any cumulative proof of bias on the part of the witness Richardson. No material fact tending to establish the crime by Butler is affected by the denial of an opportunity, even if erroneous, to the Butler defense of an evaluation of the Richardson tapes before her testimony, a point not challenged in the briefs of Butler's attorney.

Accordingly, we would follow the Rosario result, hold the claimed error harmless in the presence of overwhelming guilt, and affirm the conviction of the defendant Butler.

All concur except CAPOZZOLI, J., who dissents in part in the following memorandum:

CAPOZZOLI, Justice (dissenting in part):

I agree with the conclusion of the majority that the determination of the appeal of the defendant, Conroy, be withheld and the matter remitted to the Supreme Court, New York County for a hearing. I disagree, however, that the conviction of defendant, Butler, be affirmed.

The determination of Butler's appeal should also be held in abeyance, not for the reasons which govern the Court's conclusion as to the defendant, Conroy, but for the fact that the People have clearly violated the rule of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, 7 A.L.R.3d 174 and Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103.

I agree with the majority that the defendant, Butler, has no standing to challenge the action of the People in tapping the Conroy telephone. However, a reading of the affidavit of Lawrence K. Feitell, of counsel for the defendant, Conroy, which affidavit was executed after having heard the tapes relating to the wiretapping, discloses the following, at p. 20:

'The tapes further disclose Richardson's participation in a conspiracy with Conroy to perjure herself in a forgery trial in which Conroy was a defendant (Tapes, 2, E.). Additional statements in her conversations reveal intense hatred for Butler, shared with her by Conroy and their desire to frame Butler at his trial or to have him killed on his release from jail (Tapes 8; B, E)'.

Then we find, in the same affidavit, a conclusion with which I agree, to wit:

'(Had these latter tapes been made available to counsel for Butler during the trial under the Rosario rule, their usefulness as vehicles to impeach Richardson could not be doubted)'.

After the Feitell affidavit was served upon the District Attorney's office the People filed an answering affidavit in which they do not deny the above, but merely present arguments as to why People v. Rosario, supra, does not apply.

In Jencks v. United States, supra, at p. 669, 77 S.Ct. at p. 1014, the Court said:

'* * * Relevancy and materiality for the purposes of production and inspection, with a view to use on cross-examination, are established when the reports are shown to relate to the testimony of the witness. Only after inspection of the reports by the accused, must the trial judge determine admissibility. * * *'.

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