People v. DeMartino

• Decision Date: 11 December 1979
• Parties: The PEOPLE of the State of New York, Appellant, v. Benjamin DeMARTINO, Jr., Defendant-Respondent. The PEOPLE of the State of New York, Appellant, v. Pasquale AVITABILE, Defendant-Respondent. The PEOPLE of the State of New York, Appellant, v. Saverio SANTORA, Defendant-Respondent. The PEOPLE of the State of New York, Appellant, v. Robert Delli PAOLI, Defendant-Respondent. The PEOPLE of the State of New York, Appellant, v. Frank BATTISTA, Defendant-Respondent. The PEOPLE of the State of New York, Appellant, v. Giulo MONACO, Defendant-Respondent. The PEOPLE of the State of New York, Appellant, v. Benjamin DeMARTINO, Sr., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 949

422 N.Y.S.2d 949

71 A.D.2d 477

The PEOPLE of the State of New York, Appellant, v. Benjamin DeMARTINO, Jr., Defendant-Respondent.

The PEOPLE of the State of New York, Appellant, v. Pasquale AVITABILE, Defendant-Respondent.

The PEOPLE of the State of New York, Appellant, v. Saverio SANTORA, Defendant-Respondent.

The PEOPLE of the State of New York, Appellant, v. Robert Delli PAOLI, Defendant-Respondent.

The PEOPLE of the State of New York, Appellant, v. Frank BATTISTA, Defendant-Respondent.

The PEOPLE of the State of New York, Appellant, v. Giulo MONACO, Defendant-Respondent.

The PEOPLE of the State of New York, Appellant, v. Benjamin DeMARTINO, Sr., Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Dec. 11, 1979.

Michael Shapiro, New York City, of counsel (John F. Keenan, Deputy Atty. Gen.), for appellant.

Mark A. Varrichio, New York City, for defendants-respondents Benjamin DeMartino, Jr., Pasquale Avitabile and Benjamin DeMartino, Sr.

Arnold Wallach, New York City, of counsel (Peter J. Peluso, New York City, attorney), for defendant-respondent Saverio Santora.

Morris Kleinman, New York City, for defendant-respondent Robert Delli Paoli.

Before SULLIVAN, J. P., and LUPIANO, SILVERMAN and YESAWICH, JJ.

LUPIANO, Justice.

In November 1975, an Extraordinary Special and Trial Term Grand Jury for Bronx County commenced an investigation of police corruption. A second Grand Jury undertook the investigation in December 1976 and completed its proceedings in June 1977. The investigation focused on the relationship between members of law enforcement agencies, such as the police, and a group of persons (including defendants herein) who patronized a Bronx bar known as Buster's Lounge. It was based upon information obtained from court-ordered electronic surveillance at the bar, visual observations by the police and other investigative sources.

Defendants, subpoenaed, among others, to appear before the Grand Juries, refused, for the most part, to answer any questions, which refusal led to separate contempt indictments accusing each one, in multiple counts, of the crime of criminal contempt in the first degree (Penal Law § 215.51).

Motions by each of the defendants for an order dismissing the indictments and to suppress alleged illegally obtained evidence, resulted in an order entered on February 27, 1978, dismissing the indictments and suppressing eavesdrop evidence. ¹ The lengthy memorandum order of the hearing court regarding these motions discloses a dedicated endeavor to resolve the complex issues posed therein. Essentially, the hearing court concluded that the first warrant authorizing electronic surveillance issued on January 17, 1975 and its renewal issued on February 14, 1975, were based on probable cause; the second warrant authorizing electronic surveillance issued on March 24, 1975 was not based on probable cause, thereby vitiating such warrant and its amendment issued on April 9, 1975; there was no other independent, untainted source for the propounding of questions to these defendants when they appeared as witnesses before the Grand Juries; and the notice requirements delineated in CPL § 700.50(3) were not complied with regarding these defendants. While not specifically ruling on whether the warrant issued May 7, 1975 and its five subsequent renewals were supported by probable cause, the court indicated serious doubt as to their propriety. Similarly, while not specifically ruling that the sealing requirements contained in CPL § 700.50(2) were not complied with in regard to the recording of communications obtained pursuant to these warrants, the hearing court expressed strong doubt that the requirements were observed.

For purposes of clarification, we are concerned with three groups of warrants permitting electronic surveillance. On January 17, 1975, the District Attorney obtained a warrant permitting electronic surveillance of Buster's Lounge for purposes of intercepting conversations about illegal gambling. This warrant was extended for thirty days, on February 14, 1975. Although the January warrant, by virtue of the extension, terminated on March 19, 1975, the tape recordings of intercepted conversations obtained during the viable period of the warrant were not sealed until five days later, on March 24, 1975. The excuse for the delay given by the authorities was their belief that a reasonable delay was permissible and they viewed this delay as reasonable.

The second group entails a new warrant obtained by the District Attorney on March 24, 1975 permitting electronic surveillance of Buster's Lounge for purposes of intercepting conversations about illegal gambling and criminal usury. On April 9, 1975, this warrant was amended to also permit interceptions relating to assault, murder and conspiracy to commit same. Although this warrant expired on April 22, 1975, the tape recordings obtained during the period covered by this warrant were not sealed until April 30, 1975 eight days later. The excuse offered for the delay was again belief that a reasonable delay was permissible and that a one-week delay was reasonable.

The third group of warrants had its inception when the Special Prosecutor obtained a warrant permitting electronic surveillance at the Lounge for purposes of intercepting conversations relating to illegality in the criminal justice system. The areas authorized to be intercepted concern bribery, criminal usury, assault, murder, illegal gambling and conspiracy to commit those crimes. This warrant was renewed five times on June 5, July 3, August 1, August 29, and September 26, 1975. The warrant expired on October 25, 1975. Of the thirty-five reels of tape recordings obtained during the period of this warrant, eighteen were sealed on October 27, 1975 (two days later), sixteen on October 31, 1975 (six days later) and one on April 26, 1976 (six months later).

In People v. Washington, 46 N.Y.2d 116, 122, 412 N.Y.S.2d 854, 857, 385 N.E.2d 593, 596 (1978), the Court of Appeals declared that the sealing requirements of CPL 700.50 are to be construed strictly and "that recordings of overheard communications must be presented for judicial sealing immediately upon the expiration of the Specific warrant or extension covering the period when they were intercepted" (Emphasis supplied). As judicial sealing of tapes is required upon the expiration of Each order, reasonableness of a delay in so sealing is "measured from the expiration of the specific order or extension under which it was seized" (People v. Washington, supra, at p. 123, 412 N.Y.S.2d at p. 858, 385 N.E.2d at p. 596). Adequate explanation for the delay may be given.

On this record it is clear that no adequate excuse for the delay in sealing has been demonstrated, albeit we credit the police with good faith in their assertion that At the time it was their opinion that delays of a few days in sealing the recordings of overheard communications after expiration of the original warrant as extended by subsequent orders was permissible. Thus, the tapes must be suppressed and are not admissible and the testimonial use or disclosure of the contents of any communication or evidence derived therefrom is proscribed (CPL 700.65, subd. 3). ²

The People argue that despite the fact that the tapes themselves must be suppressed, the information obtained from an intercept under a lawful warrant permitting electronic surveillance may serve a limited purpose, namely as a source for questions to be propounded before the Grand Jury. As noted in People v. Canarrozzo, 64 A.D.2d 1018, 409 N.Y.S.2d 466 (4th Dept. 1978):

"The prohibition against the use of tapes which have not been sealed pursuant to CPL 700.50 (subd. 2) applies to their use or the disclosure of their contents 'While giving testimony under oath in any criminal proceeding in any court or in any grand jury proceeding' (CPL 700.65, subd. 3). The prohibition in CPL 700.65 (subd. 3) does not extend to disclosure of the contents of unsealed tapes to other law enforcement personnel for purposes of assisting their investigation or, . . . for establishing probable cause for the issuance of additional warrants (CPL 700.65, subds. 1 and 2; United States v. Fury, 554 F.2d 522, 531-532 (2nd Cir.), cert. den. sub nom. Quinn v. United States, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095; People v. Iucci, 61 A.D.2d 1, 10-11, 401 N.Y.S.2d 823 (828-829))." (Emphasis supplied). ³

Assuming the authorization for the electronic surveillance to be proper, the distinction of sealing being a Postintercept requirement obtains relevance in determining whether derivative, as distinguished from testimonial, use of tapes which had not been timely sealed, may be made (See, United States v. Fury, 554 F.2d 522, 532, cert. den. sub nom. Quinn v. United States, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095). Pertinently, in People v. McGrath, 46 N.Y.2d 12, 27, 412 N.Y.S.2d 801, 808, 385 N.E.2d 541, 547 (1978), the Court of Appeals noted that

"Federal courts have held that in a proceeding before the Grand Jury a witness is entitled to a suppression hearing only where there is an absence of a court order permitting the eavesdropping or the Government concedes the illegality of the surveillance or where there has been a prior judicial adjudication of illegality."

Thus, where the wiretap was illegal, a witness appearing before the Grand Jury may refuse to answer, but may not choose to testify in an evasive, equivocal and patently false manner with the consequence that as to the former contempt by refusal to answer, the illegality of the wiretap constitutes a defense to prosecution for criminal contempt as to the latter contempt by evasive answer, it does not because a constitutionally guaranteed right may not be cavalierly converted into a license to commit contempt by evasive answer (People v. McGrath, supra, at p. 29, 412 N.Y.S.2d at p. 809, 385 N.E.2d at p. 549).

Although the Grand Jury is a part...