People v. Capolongo

• Decision Date: 21 February 1995
• Parties: , 647 N.E.2d 1286 The PEOPLE of the State of New York, Respondent, v. Patsy CAPOLONGO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 778

623 N.Y.S.2d 778

85 N.Y.2d 151, 647 N.E.2d 1286

The PEOPLE of the State of New York, Respondent, v. Patsy CAPOLONGO, Appellant.

Court of Appeals of New York.

Feb. 21, 1995.

Kevin P. Gilleece, White Plains, and Lanna & Coppola, Yonkers, for appellant.

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

OPINION OF THE COURT

KAYE, Chief Judge.

The central question we confront is whether New York law--in particular CPL article 700--governs admissibility in New York prosecutions of foreign wiretap evidence. This question, not expressly answered by our comprehensive statutory scheme for electronic eavesdropping or previously addressed by us, foreshadows issues that will undoubtedly recur as boundaries dissolve in an era of electronic and satellite communication.

We turn first to consideration of the events here, which included independent investigations in New York and Canada and culminated in defendant's conviction for gambling offenses.

The New York Investigation

Acting upon a tip from Texas State Police, in late 1989 New York State Police began investigating an alleged gambling ring operating in Westchester and Bronx Counties. By April 1990, enough evidence had been gathered through surveillance and inspection of telephone records to persuade Bronx Supreme Court to issue an eavesdropping warrant for telephone lines assigned to the last-known addresses of participants of the ring. As a result of that phase of the investigation, several suspects were arrested and gambling equipment seized.

Months later, on July 5, 1990, Westchester Supreme Court authorized placement of a PEN register--a device that recorded all outgoing telephone numbers--on the telephone of Todd Alpert, a suspected member of the ring, and on August 27, 1990, the same court signed an eavesdropping warrant for Alpert's telephone. Among the calls intercepted were numerous conversations between Alpert and defendant concerning gambling.

The authorities then secured warrants authorizing search of eight separate locations, including defendant's home, which were executed simultaneously on September 10, 1990. At defendant's home, the police seized shopping bags filled with packets of gambling records, each marked with dates between September 1989 and April 1990, as well as two locked metal boxes. One box--for which defendant produced the key--contained $70,000 in cash. Additional documents were determined to be defendant's daily records of bets taken, and some entries corresponded to conversations intercepted pursuant to the wiretap authorized on August 27th. Defendant was arrested immediately.

Three days later, on September 13, the wiretap was terminated and sealed by the issuing Judge. The People filed a felony complaint charging defendant with seven instances of promoting gambling based on bets "received and placed during a court-ordered eavesdropping warrant, during the period of August 27, 1990 through September 10, 1990." A Grand Jury indicted defendant on January 24, 1991, additionally charging defendant with possession of records on sporting events during January and September of 1990. Defendant was arraigned on this indictment ... No. 91-0038, on February 1, 1991.

On March 12, 1991, defendant moved to suppress all evidence seized and all intercepted communications on the ground that the Westchester County wiretap warrant and affidavits were not turned over to defendant within 15 days of arraignment. The People conceded their failure to comply with the statutory mandate of CPL 700.70, and themselves moved for dismissal of the indictment since, without the wiretap evidence, they lacked sufficient evidence to go forward with prosecution of the indictment. On May 3, 1991, the court entered an order of dismissal in the interest of justice pursuant to CPL 210.40(1).

Based upon presentation of still more gambling records seized from defendant's house on September 10, 1990, the People secured a second indictment ... No. 91-0650. The first count of this indictment was identical to the first count of indictment No. 91-0038, charging first degree possession of gambling records on September 10, 1990. Additional counts charged various gambling offenses on 35 days between September 25, 1989 and April 1, 1990. ¹ At his arraignment on April 19, 1991, defendant received copies of the Westchester warrants and supporting affidavits, which included the April 23, 1990 Bronx wiretap warrant.

Defendant moved to dismiss the second indictment on several grounds, including that dismissal of the first indictment had resolved the charges, and that failure to give timely notice of wiretap evidence in the first prosecution precluded use of that evidence and all evidence derived from it in any subsequent prosecutions. A hearing was ordered to determine whether the People possessed probable cause as to the April 23, 1990 Bronx eavesdropping warrant.

The Canadian Investigation

On January 6, 1992, when the parties appeared for trial, the People for the first time informed defendant of their intent to offer additional wiretap evidence obtained by Canadian authorities during the course of an entirely independent investigation. During investigation into an Ontario gambling ring that began October 24, 1989 and concluded on January 11, 1990, Canadian authorities recorded hundreds of conversations between their suspect in Ontario and defendant in New York. Under circumstances not disclosed to the court, New York authorities first learned of the Canadian investigation on December 18, 1990. In spring of 1991, a Canadian inspector met with authorities at the Bronx District Attorney's office and exchanged information with law enforcement agencies in New York.

On January 18, 1991, the People had obtained a copy of the Canadian court's authorization for placement of the wiretap, but were informed that the accompanying affidavit was sealed and not available for inspection under Canadian law. A partially redacted copy was received nearly a year later, on January 13, 1992, and immediately turned over to defendant.

Defendant moved pursuant to CPL article 710 to suppress evidence of the Canadian wiretaps on the grounds that, in violation of CPL 700.70, he had not received the wiretap warrants and supporting affidavits within 15 days of his arraignment. While acknowledging that he would not be entitled to such notice under Federal wiretapping laws, he argued that New York law was "far more stringent, expansive and protective" of the rights of its citizens in the area of eavesdropping. The People sought to establish good cause for late notice on the grounds that the wiretap affidavit had not been obtained from Canadian authorities until the very day of the hearing.

Citing United States v. Cotroni, 527 F.2d 708, the court denied defendant's motion, reasoning that the objective of suppressing unlawfully seized evidence--to deter improper activity by law enforcement officers--is not furthered by suppressing, in a New York prosecution, evidence gathered in Canada. Absent a showing the evidence was obtained under circumstances that "shocked the conscience" or with the participation of United States law enforcement personnel, a defendant was not entitled to challenge admissibility of foreign wiretap evidence. Accordingly, the court determined defendant had received reasonable notice of the evidence, and was not entitled to strict compliance with the 15-day notice requirement of CPL 700.70.

At the subsequent bench trial, Inspector Sandelli of the Metropolitan Toronto Police Force testified that the master tape recording of the intercepted telephone conversations was kept in storage once the surveillance ended, but was not sealed. Defendant objected to admission of the tapes on the ground that, as a matter of statutory law, the procedures employed fell short of New York's sealing standard. No allegation was made that the procedures followed fell short of Canada's own legal standards. The court, after inquiry into the safeguards taken to preserve the integrity of the master tape, overruled defendant's objection. Defendant was convicted of numerous gambling-related offenses, and the Appellate Division affirmed, 197 A.D.2d 3, 609 N.Y.S.2d 926.

Before this Court, defendant asserts four claims: that the Canadian wiretap evidence should have been precluded because of the People's failure to provide timely notice under CPL 700.70; that preclusion of the Westchester wiretap evidence for lack of timely notice following the first indictment barred the People from seeking to use that evidence--and any evidence derived from it--upon prosecution of the second indictment; that the People failed to comply with the statutory sealing requirements following termination of the Westchester wiretap; and that defendant was deprived of his right to a speedy trial.

We now reverse on the first and second grounds.

I

Condemned as a nuisance at common law (4 Blackstone, Commentaries, at 168) and long recognized as highly intrusive (Berger v. New York, 388 U.S. 41, 45, 87 S.Ct. 1873, 1875, 18 L.Ed.2d 1040), eavesdropping has grown more simple and yet infinitely more complex in the modern communication age.

New York State attempted to regulate wiretapping and other forms of electronic surveillance as early as 1895 (Berger v. New York, 388 U.S. 41, 46, 87 S.Ct. 1873, 1877, 18 L.Ed.2d 1040) and created a State constitutional privacy interest in electronic communications long before Federal recognition that the Fourth Amendment protects against electronic eavesdropping (N.Y. Const., art. I, § 12 [1938]; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 [1967]. ² Despite our stated public policy, unauthorized wiretaps by law enforcement officials far outnumbered legal wiretaps (Note, Wiretapping in New York, 31 N.Y.U.L.Rev. 197, 214), and evidence gathered as a result of these illegal wiretaps was...