People v. Capolongo

• Decision Date: 11 April 1994
• Citation: 197 A.D.2d 3,609 N.Y.S.2d 926
• Parties: The PEOPLE, etc., Respondent, v. Patsy CAPOLONGO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 926

609 N.Y.S.2d 926

197 A.D.2d 3

The PEOPLE, etc., Respondent, v. Patsy CAPOLONGO, Appellant.

Supreme Court, Appellate Division Second Department.

April 11, 1994.

Lanna & Coppola, Yonkers (Kevin P. Gilleece, of counsel), for appellant.

Jeanine Pirro, Dist. Atty., White Plains (John J. Sergi and Richard E. Weill, of counsel), for respondent.

Before THOMPSON, J.P., and ROSENBLATT, MILLER and RITTER, JJ.

MILLER, Justice.

The critical issue raised on this appeal is whether the People's failure to serve upon the defendant, within 15 days after his arraignment, a copy of a Canadian wiretap warrant and its accompanying application, constitutes a violation of CPL 700.70 such that the evidence derived therefrom must be suppressed at the defendant's trial on charges of criminal possession of gambling records in the first degree and promoting gambling in the first degree (35 counts). For the reasons that follow, we hold that CPL 700.70 has no application to a Canadian wiretap, and, thus, the evidence derived therefrom by Canadian authorities was properly admitted at the defendant's trial.

This appeal stems from an illegal gambling operation carried out in Westchester and Bronx Counties. A criminal investigation conducted by the Westchester County District Attorney's Office in conjunction with New York State Police initially focused on the activities of three alleged participants in the gambling operation: Paul Cuzzo, Alphonse Cuzzo, and Todd Alpert.

On April 23, 1990, an order of the Supreme Court, Bronx County (Roberts, J.), authorized the interception and recording of certain calls over the Cuzzos' telephone lines. Consequently, in furtherance of its investigation, the police sought and obtained authorization from the Supreme Court, Westchester County (Cowhey, J.), to place a pen register on Alpert's telephone. The pen register on Alpert's telephone revealed that many of Alpert's calls were placed to the home of the defendant's father.

The extent of the defendant's involvement in the gambling operation became apparent after an eavesdropping order of the Supreme Court, Westchester County (Cowhey, J.), dated August 27, 1990, authorizing the interception and recording of certain calls over Alpert's telephone line. The recorded conversations revealed that Alpert was moving or "laying off" bets for the defendant.

On September 10, 1990, a warrant to search the defendant's home was issued by the Supreme Court, Westchester County (Cowhey, J.). The subsequent search of the premises produced gambling records recovered from the defendant's bedroom. Based on the foregoing evidence, i.e., the eavesdropping tapes and gambling records, the defendant was arrested on September 10, 1990, for the crimes of possession of gambling records in the first degree and promoting gambling in the first degree. The defendant was indicted and arraigned on February 1, 1991.

On April 8, 1991, the initial indictment was dismissed due to the People's failure to furnish the defendant with copies of the eavesdropping warrants and accompanying applications within 15 days after his arraignment, as required by CPL 700.70. The defendant's case was represented before a second Grand Jury, and on April 19, 1991, he was arraigned on charges of possession of gambling records in the first degree and promoting gambling in the first degree. On the very date of his arraignment on the second indictment, the defendant was furnished with copies of the Bronx and Westchester eavesdropping warrants and applications.

In June 1991 the defendant moved to dismiss the second indictment, arguing, inter alia, that any evidence seized at the time of his arrest and as a result of the eavesdropping orders should be suppressed due to the People's failure to comply with the 15-day notice provision of CPL 700.70 measured from the date he was arraigned on the first indictment. He also moved to suppress eavesdropping evidence for lack of probable cause. By an order of the County Court Westchester County (Silverman, J.), entered August 20, 1991, the defendant's motion was denied except to the extent that a hearing was ordered to determine whether probable cause existed to issue the original Bronx eavesdropping warrant.

On January 6, 1992, the probable cause hearing was held before Judge Silverman. At the hearing, the People first informed the defendant of the existence of Canadian wiretap tapes that the People intended to introduce at the trial. The tapes had been recorded as part of a Canadian investigation into a widespread, illegal bookmaking operation in that nation, and were authorized by an Ontario judge. Hundreds of conversations involving a Canadian target, Richard Muller, were intercepted. Those Canadian tapes also recorded numerous conversations between Muller and the defendant. The defendant objected to the introduction of these Canadian tapes at trial, and the court directed the defendant to submit a written motion.

On or about January 7, 1992, the defendant moved to suppress the evidence derived from the Canadian wiretap tapes, arguing only that the People's failure to furnish him with a copy of the wiretap warrant and accompanying application within 15 days after his arraignment compelled suppression pursuant to CPL 700.70. In opposition to the motion, the People asserted that Canadian authorities first notified them of the existence of the Canadian tapes on or about December 18, 1990. The People received a copy of the wiretap authorization on approximately January 18, 1991. The People attempted to obtain a copy of the affidavit accompanying the wiretap authorization, but were advised by the Canadian authorities that the affidavit was sealed pursuant to Canadian law, and was only available for inspection by criminal defendants. According to the People, on "January 13, 199[2] the People for the first time received a partially redacted copy of the affidavit accompanying the Canadian wiretap authorization". The People argued that CPL 700.70 had no application to the Canadian eavesdropping evidence. It should be noted that the defendant apparently had previously been placed on notice of the existence of the Canadian wiretap evidence in a then pending prosecution in Bronx County, as well as in a prior prosecution in Nassau County.

Ruling from the bench on January 24, 1992, the court refused to suppress the Canadian wiretap evidence, and the case proceeded to trial. The People's case included testimony from officers of the New York State Police Department concerning the search of the defendant's premises, and testimony from Canadian Police officers concerning the Canadian wiretap investigation. The Canadian wiretap tapes were introduced into evidence. Further, the court, sitting as trier of facts, listened to portions of the tapes and read transcripts of the recorded conversations between the defendant and Canadian target, Richard Muller. The defendant did not present any evidence in his behalf.

On July 8, 1992, judgment was rendered convicting the defendant of possession of gambling records in the first degree (1 count) and promoting gambling in the first degree (35 counts), and sentencing him to concurrent indeterminate terms of one and one-third years to four years imprisonment, and $5,000 fines on each count, for a total fine of $180,000. The most significant issue raised on this appeal is whether the Canadian wiretap tapes, and the evidence derived therefrom, were received in evidence in violation of the defendant's rights pursuant to CPL 700.70. We hold that this evidence was properly admitted at the trial and therefore affirm.

The defendant contends that the Canadian eavesdropping evidence should have been suppressed due to the People's failure to timely furnish him with the Canadian eavesdropping warrant and accompanying application pursuant to CPL 700.70. He asserts that the Legislature intended the statute to apply to all eavesdropping evidence, as evidenced by the language thereof which precludes admission of "any intercepted communication" (emphasis added) absent disclosure. The defendant argues that any other construction of the statute would frustrate the legislative intent, namely, to notify defendants of the prosecution's intent to use such evidence, thereby enabling defendants to bring well-prepared and timely omnibus motions to suppress.

The People argue that CPL 700.70 is inapplicable to wiretaps conducted by foreign officials in their own country. They assert that CPL 700.70 cannot apply to Canadian eavesdropping warrants and accompanying applications since such documents cannot be controlled by CPL article 700. Further, the People argue that if CPL article 700 does not apply, no bases can exist to suppress such evidence.

It is well established that the Fourth Amendment and its remedial corollary, the exclusionary rule, have no application to the extraterritorial actions of foreign authorities (see, United States v. Cotroni, 527 F.2d 708,cert. denied 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830; United States v. Mount, 757 F.2d 1315; United States v. LaChapelle, 869 F.2d 488). The underlying policy of the exclusionary rule is to deter overreaching and illegal police conduct, and the exclusionary rule is considered incapable of influencing the conduct of foreign authorities (see, United States v. Cotroni, supra ). Therefore, the seizure of evidence by foreign officials in their own country need not comport with the United States Constitution to be introduced in evidence at a trial in the United States.

However, there are two widely-recognized exceptions to this general rule: (1) where foreign police conduct "shock[s] the [judicial] conscience" (United States v. Cotroni, supra, at 712 n. 10) or (2) where American agents have "substantially participated in the [investigations] so as to convert them into joint ventures between the United States and the foreign officials" (Stonehill v. United States, 405 F.2d 738, 743, cert....