People v. DiFiglia
| Decision Date | 06 November 1975 |
| Citation | 50 A.D.2d 709,374 N.Y.S.2d 891 |
| Parties | PEOPLE of the State of New York, Appellant, v. Russell DiFIGLIA, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Edward C. Cosgrove, Dist. Atty., William E. Balthasar, Buffalo, for appellant.
Salten Rodenberg, Buffalo, for respondent.
Before MARSH, P.J., and MOULE, SIMONS and DEL VECCHIO, JJ.
The memorandum decision of the County Court held that section 2516(2) of Title 18 of the United States Code did not authorize a State Supreme Court Justice to issue an eavesdropping warrant upon a misdemeanor offense. It was conceded that the search warrant depended for its validity on the validity of the eavesdropping warrant.
The affidavit by Detective Bambach, in support of the application for the eavesdropping warrant, asserted that 'he has probable cause to believe that the premises at 4949 Harlem Road, Snyder, New York, are being used for a bookmaking operation * * * conducted by one Russell DiFiglia * * * over telephone numbers 839--4154 and 839--4173 listed to Barbara Williams'. The source of his information was from two informants, one of whom had proved reliable in the past, and from physical surveillance of defendant and the premises by members of the Buffalo and Amherst Police Departments. On August 23, 1972, Detective Dragonette, who recognized DiFiglia's voice, overheard a telephone conversation by the informant, who placed two wagers with defendant. This affidavit was sufficient to find that gambling was being permitted, a designated crime for which a State may authorize the issuance of an eavesdropping warrant. The affidavit also contained sufficient information to sustain the magistrate's finding of probable cause that illegal gambling was being committed in violation of section 225.05 of the Penal Law.
The affidavit for a search warrant may be based on hearsay information, so long as the magistrate is informed of some of the underlying circumstances supporting the affiant's conclusion that the informant was credible and reliable (United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684; People v. Lypka, 36 N.Y.2d 210, 366 N.Y.S.2d 622, 326 N.E.2d 294).
Appellant's main contention is that the order suppressing the evidence was improvidently issued because neither the New York State statute nor the Federal eavesdropping statute prohibits electronic surveillance to provide evidence of the designated offense of gambling, punishable as a misdemeanor. Section 700.05(8)(c) of the Criminal Procedure Law specifically designated the crime of promoting gambling in the second degree (Penal Law § 225.05), a misdemeanor offense, as a crime for which an eavesdropping warrant may issue.
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State v. Kolosseus
...which have had occasion to consider the proposition have resolved the issue contrary to the defendant's contention. People v. DiFiglia, 50 App.Div.2d 709, 374 N.Y.S.2d 891; United States v. Carubia, D.C., 377 F.Supp. 1099; United States v. Curreri, D.C., 388 F.Supp. 607. We recognize that t......
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People v. Schipani
...restraint of trade, an unclassified misdemeanor (see General Business Law, § 341), falls within neither category (cf. People v. DiFiglia, 50 A.D.2d 709, 374 N.Y.S.2d 891). Although it has been suggested that when uncovered in the punctilious execution of a proper warrant, information as to ......
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People v. Bogdan
...the commission of the crime of gambling as a misdemeanor. The court's decision, however, preceded our determination in People v. DiFiglia, 50 A.D.2d 709, 374 N.Y.S.2d 891, wherein we interpreted the controlling federal statute (U.S.Code, tit. 18, § 2516, subd. (2)) as authorizing wiretap wa......