People v. Contento

• Decision Date: 26 January 1989
• Citation: 146 A.D.2d 959,537 N.Y.S.2d 88
• Parties: The PEOPLE of the State of New York, Respondent, v. Gerald A. CONTENTO, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 88

537 N.Y.S.2d 88

146 A.D.2d 959

The PEOPLE of the State of New York, Respondent, v. Gerald A. CONTENTO, Jr., Appellant.

Supreme Court, Appellate Division,

Third Department.

Jan. 26, 1989.

Robert E. Jones, Cortland, for appellant.

William J. Comiskey, Albany, for respondent.

Before MAHONEY, P.J., and KANE, MIKOLL and HARVEY, JJ.

HARVEY, Justice.

Appeal from a judgment of the Supreme Court (Ellison, J.), rendered July 27, 1987 in Tompkins County, convicting defendant upon his plea of guilty of the crime of conspiracy in the fourth degree.

The underlying facts in this case are set forth in more detail in this court's prior decision involving two of defendant's codefendants (see, People v. Moore, 142 A.D.2d 895, 531 N.Y.S.2d 397). Briefly stated, defendant and six others were each indicted on one count of conspiracy in the fourth degree, charging that they had agreed to engage in an illegal narcotics operation with Eric Degan, an unindicted coconspirator, concerning the possession and sale of cocaine. Along with Degan's testimony before the Grand Jury, the indictment was also based on evidence gathered through the use of an eavesdropping warrant. Thereafter, defendant moved for, inter alia, suppression of the evidence obtained as a result of the eavesdropping warrant and dismissal of the indictment. This motion was denied, as was a subsequent motion for reargument based on the alleged collateral estoppel effect of a separate decision by the County Court of Chenango County ruling that the same eavesdropping warrant involved herein was invalid due to the unreliability of information obtained from a confidential informant. Defendant then pleaded guilty to the charged crime and was sentenced to five years' probation and fined $1,000. This appeal followed.

We affirm. Notably, the reasoning this court applied in People v. Moore (supra) disposes of the principal issues defendant raises on this appeal. Similar to his codefendants in Moore, defendant argues that probable cause for issuance of the eavesdropping warrant was lacking as the reliability of the confidential informant was not established. In addition, defendant contends that suppression was required due to the collateral estoppel effect of the order to suppress in the separate proceeding in Chenango County. However, both of these arguments were specifically rejected by this court in People v. Moore (supra) and require no reexamination herein.

Defendant also contends that the warrant was improperly executed by failing to minimize the interception and recording of privileged or unauthorized communications not subject to the warrant. We find, however, that defendant has no standing to raise this issue since he has shown no property interest in the premises where the telephone was tapped, nor has he shown a conversation to which he was a party where lack of minimization is claimed (see, People v. Edelstein, 54 N.Y.2d 306, 445 N.Y.S.2d 125, 429 N.E.2d 803; People v. Konyack, 99 A.D.2d 588, 471 N.Y.S.2d 699). Were we to examine this issue, we note that defendant has made no specific allegations of lack of minimization and therefore, has no cognizable claim in that respect (see, People v. Weiss, 63 A.D.2d 662, 404 N.Y.S.2d 392, affd. 48 N.Y.2d 988, 425 N.Y.S.2d 543, 401 N.E.2d 901).

Next, defendant argues that suppression was warranted because the tape recordings made as a result of the eavesdropping were improperly sealed. Clearly, the People must strictly comply with the requirements for the sealing of tapes and the People must offer a satisfactory explanation for any delay (People v. Winograd, 68 N.Y.2d 383, 509...