People v. Di Stefano

• Decision Date: 17 February 1976
• Citation: 345 N.E.2d 548,38 N.Y.2d 640,382 N.Y.S.2d 5
• Court: New York Court of Appeals Court of Appeals
• Parties: , 345 N.E.2d 548 The PEOPLE of the State of New York, Appellant, v. Peter Di STEFANO, Respondent.

Page 5

382 N.Y.S.2d 5

38 N.Y.2d 640, 345 N.E.2d 548

The PEOPLE of the State of New York, Appellant, v. Peter Di STEFANO, Respondent.

Court of Appeals of New York.

Feb. 17, 1976.

Robert M. Morgenthau, Dist. Atty. (Peter L. Zimroth and Anthony J. Girese, New York City, of counsel), for appellant.

Irwin Rochman and Barbara Teitler Rochman, New York City, for respondent.

GABRIELLI, Judge.

We consider for the first time ¹ the effect of the Criminal Procedure Law provision (CPL 700.65, subd. 4) requiring retroactive judicial amendment of an eavesdropping warrant prior to the admission at trial of an intercepted 'communication which was not otherwise sought', in the original warrant. Present also are questions whether evidence other than statistical data suffices to establish that an eavesdropping warrant was executed in such a manner so as to minimize the interception of communications not otherwise sought to be intercepted and, additionally, whether the revised Penal Law (L.1965, ch. 1030) defining an attempt to commit a crime (Penal Law, § 110.00) changed the rule of People v. Rizzo, 246 N.Y. 334, 337, 158 N.E. 888, 889 that the prosecution must establish that defendant was 'very near to the accomplishment of the intended crime'.

Following jury verdicts upon which defendant was convicted of conspiracy in the second degree (Penal Law, § 105.10) and attempted robbery in the second degree (Penal Law, §§ 110.00, 160.10), he was sentenced to concurrent indeterminate terms of imprisonment not to exceed three years. A divided Appellate Division reversed and held that certain electronic eavesdropping evidence should have been suppressed and, further, that the evidence adduced on the attempted robbery charge was insufficient to establish the commission of that crime. Pursuant to leave granted by the Chief Judge of this court, the People appeal.

On the basis of undercover surveillance conducted by New York City Police officers and in furtherance of 'an investigation into several organized crime figures who were operating in New York County', the District Attorney obtained an eavesdropping warrant which authorized intercepti of conversations by electronic means over a telephone located in Jimmy's Lounge, a bar in Manhattan. The warrant, dated February 3, 1972, permitted the interception of conversations involving five named individuals, and concerning crimes related to bookmaking, gambling and extortion.

The original warrant was renewed on March 8, April 7 and finally, on May 5, 1972. With each renewal, the scope of the warrant was expanded, eventually including additional criminal activity of other named individuals and certain telephones. As a result of this electronic surveillance effort, an extensive criminal investigation was launched and targets thereof were subsequently convicted of such crimes as extortion, theft of securities, counterfeiting, narcotics trafficking, attempted murder, loansharking, theft of airline tickets, perjury and contempt. Up to the time of the grant of the May 5 amendment neither this defendant nor the crimes of robbery or conspiracy to rob were within the scope of the warrant or the amendatory orders.

On April 6, the day before the second renewal period ended, police officers overheard a brief conversation between defendant and another individual, later identified as Al Fristachi, an employee of a New York City ticket agency. However, the electronic recording device, which was designed to become activated whenever the tapped receiver was lifted, apparently malfunctioned causing the first portion of the conversation to be unrecorded. Nonetheless, the monitoring officer listened to the conversation and was later able to state, with respect to the unrecorded segment, that Fristachi advised defendant 'that an unknown male picked up envelopes all over town and he wanted (defendant) to watch the guy'. The officer further indicated that the sum and substance of the conversation was that Fristachi wanted defendant 'to clock' the messenger. At this point in the conversation, the malfunction was discovered and corrected, the recorded portion adding only that defendant and Fristachi agreed that it was better that they talk 'when they see each other'.

Apart from the call being logged in the daily 'plant' report (a summary of all overheard conversations) and record do not reveal any further action taken by the authorities with respect to this conversation.

Subsequently, on April 17, during the third renewal period, the officers overheard four more conversations involving defendant. In the first two conversations defendant spoke with his cousin who apparently relayed, in a somewhat obscure fashion, information from Fristachi that the messenger was just starting his rounds and would 'wind up' at the Commodore Hotel; the defendant then agreed to meet with his cousin at Jimmy's Lounge. A third conversation between defendant and his girl friend, made at 11:15 A.M., corroborated the inference from the first two conversations that something may have been afoot that day.

Acting upon the information garnered from these conversations, undercover officers placed defendant under visual surveillance. Shortly thereafter defendant was observed leaving Jimmy's Lounge with a companion, arriving at the Commodore Hotel a few minutes after 1:00 P.M. The pair left the area at 1:15 P.M., without engaging in any criminal acts. It appears that the messenger, who defendant 'clocked', had left the Commodore Hotel just prior to the arrival of the defendant and his companion.

The fourth and final conversation overheard took place later that afternoon, and in which defendant revealed that they had missed seeing the messenger but that they were going to try again at a different location.

On May 5 the final application to renew and amend the original warrant was granted. In addition to detailing the discovery of other crimes allegedly committed by the targets of the investigation, the order incorporat the new crimes of robbery and conspiracy to rob, and defendant's April 17 conversations, which were capsulized in the application. While the April 6 conversation was not specifically mentioned, the daily plant report which summarized that conversation was submitted to the court as a part of the application and, in a separate paragraph, was referenced to the evidence of new criminal activity described in the warrant.

The disclosure and use of eavesdropping information not otherwise sought in an eavesdropping warrant is governed by CPL 700.65 (subd. 4) which provides:

'4. When a law enforcement officer, while engaged in intercepting communications in the manner authorized by th article, intercepts a communication which was not otherwise sought and which constitutes evidence of any crime that has been, is being or is about to be committed, the contents of such communications, and evidence derived therefrom, may be disclosed or used as provided in subdivisions one and two. Such contents and any evidence derived therefrom may be used under subdivision three when a justice amends the eavesdropping warrant to include such contents. The application for such amendment must be made by the applicant as soon as practicable. If the justice finds that such contents were otherwise intercepted in accordance with the provisions of this article, he may grant the application.'

At the suppression hearing, the sole witness was the Assistant District Attorney who was in charge of the tape monitoring operation. He briefly described the obtaining of the warrants, as well as the renewals and amendments. He testified that the monitoring officers were instructed that 'If the conversation of the parties, or the substance was not relevant, or not included in the order, they were to immediately discontinue the electronic surveillance,' and, further, that if 'the parties were not named in the order but it was clear from the beginning of the conversation that the conversation involved a crime or was related to a crime, (sic) they were to record the conversations and to immediately report to me that fact so that a suitable amendment could be made to the order'. Additionally, he stated that in no event were the officers to monitor legally privileged communications. The officers were also required to make daily plant reports, setting forth the substance of all monitored conversations, which the Assistant District Attorney reviewed each day.

The defendant chose not to present any witnesses, although it was announced that the monitoring police officers were present and available to testify.

Upon the termination of the hearing defense counsel mentioned that CPL 700.65 (subd. 4) requires that an application for amendment be made 'as soon as practicable', but it does not appear that his application for suppression was predicated on that ground. Nor, did his cross-examination of the sole witness or, for that matter, any suppression hearing testimony, touch upon the timeliness of the amendment application. Hence, it does not appear that the court's attention was directed to that subject and any claim relating thereto, if su there be, is deemed to be waived (People v. Pobliner, 32 N.Y.2d 356, 367, 345 N.Y.S.2d 482, 491, 298 N.E.2d 637, 643, cert. den. 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110).

The Appellate Division held that the trial court erred in denying the suppression motion, and reasoned that the April 6 conversation 'alerted' the District Attorney to the plans for the robbery and, thus, it could not be said that the April 17 conversations were unexpectedly overheard; and, further, that '(t)o allow testimony as to the contents of such communications (and with respect to the evidence derived therefrom) when the evidence was intentionally obtained, without prior court scrutiny, would permit the District Attorney, in his own discretion to expand the entire scope of the eavesdropping warrant, and to thereafter legitimize such action by a...