People v. Feinlowitz

• Decision Date: 07 July 1971
• Citation: 29 N.Y.2d 176,324 N.Y.S.2d 62,272 N.E.2d 561
• Parties: , 272 N.E.2d 561 The PEOPLE of the State of New York, Respondent, v. Benjamin FEINLOWITZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 62

324 N.Y.S.2d 62

29 N.Y.2d 176, 272 N.E.2d 561

The PEOPLE of the State of New York, Respondent, v. Benjamin FEINLOWITZ, Appellant.

Court of Appeals of New York.

July 7, 1971.

Arnold E. Wallach, Paul Crames and Max Fruchtman, New York City, for appellant.

Carl A. Vergari, Dist. Atty. (James J. Duggan, White Plains, of counsel), for respondent.

JASEN, Judge.

The crucial issue in this case concerns the admissibility of certain recordings of defendant's voice obtained as a result of a wiretap made pursuant to court order. We conclude that the admission of the evidence was violative of neither the constitutional nor statutory rights of defendant and that, consequently, his conviction should be affirmed.

In May of 1966, the Mount Vernon Police Department received a tip from an informant, who had previously proven reliable, that a public telephone in George's Pharmacy was being used to transmit horse racing and sporting bets. A detective assigned to observe this location noticed defendant, a known and convicted gambler, repeatedly leave his office (where there was a telephone) and use this public phone booth. Moreover, on one occasion, he overheard defendant discussing baseball lines and quoting odds on that day's games. On the basis of this information, the police secured an order from the Westchester County Court authorizing them to intercept and record conversations over that telephone line.

Pursuant to that order, a tap was installed on May 18, 1966, and was frequently monitored by the police. On June 15, the tap was being monitored by Detective Burke, who overheard several sports bets being transmitted. He immediately contacted two other officers, who then entered the pharmacy and went to the telephone booth. These officers possessed a search warrant authorizing them to search defendant's person. They discovered defendant in the phone booth with the receiver in his hand and with an envelope and two slips of paper lying nearby. He was asked to step out of the phone booth, where a search of his person revealed $1,495.42 in cash and several other slips of paper. An additional $5,000 in cash was found in the envelope and all of the slips contained sports bets and gambling odds.

The tape of defendant's telephone conversation, which was introduced over his objection at trial, revealed the taking of several bets. Detective John Roach identified one of the records introduced in evidence as a record of the three-team-parlay bet which the taped conversation concerned. Richard Burke, the detective who made the recording, identified the voice of the defendant on the tape as the receiver of this bet. Also, at the trial, Stephen Fein, the defendant's son, testified in his father's defense. He contended that the cash possessed by defendant was the proceeds of a loan which he (Fein) had obtained to purchase certain machinery for his business. However, no business records were produced to verify this claim.

Upon this record, defendant was convicted by the City Court of Mount Vernon of the crimes of bookmaking and possession of bookmaking records (former Penal Law, Consol.Laws, c. 40, §§ 986, 986--b). For these convictions, defendant was sentenced to concurrent terms of 30 days' imprisonment.

The defendant argues on this appeal that the introduction of evidence obtained by wiretapping was constitutionally impermissible and should have been excluded at the trial. In addition, the defendant urges that the order authorizing the telephone interception was void because it violated section 605 of the Federal Communications Act.

At the time the authorized telephone interception occurred, there were no significant Federal constitutional restraints relative to securing and using wiretap evidence. The basic pronouncement by the Supreme Court in this area remained Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, which explicitly held that a wiretap, conducted without a physical intrusion into the defendant's premises, was not an unlawful search and seizure within the meaning of the Fourth Amendment. It is thus clear that at the time the wiretap occurred, the intrusion did not violate the Olmstead rule. Moreover, at the time, such conduct in New York was regulated by section 813--a of the Code of Criminal Procedure, which specified procedures for obtaining a court order authorizing a wiretap. There is no contention made here that the dictates of that section were not scrupulously followed.

However, the period between the seizure of the evidence and the judgment of conviction ¹ was a time of rapidly changing constitutional interpretation in this area. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, specifically invalidated the long-standing Olmstead rule and declared that nontrespassatory seizures were also constitutionally prohibited. Additionally, in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, the Supreme Court declared that section 813--a of the Code of Criminal Procedure was at least partially unconstitutional for its overbreadth. ²

Consequently, the specific problem arising out of this rapidly changing complex of decisional law is to determine precisely what constitutional rule is applicable to this prosecution. The Supreme Court has addressed itself to this perplexing question in two recent cases and, seemingly has provided a rather clear answer. In Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, the court held that Katz is to be applied prospectively only. This was further explained in Kaiser v. New York, 394 U.S. 280, 89 S.Ct. 1044, 22 L.Ed.2d 274, to mean that if 'the wiretapping in this case occurred before Katz was decided and was accomplished without any intrusion into a constitutionally protected area of the petitioner, its fruits were not inadmissible under the exclusionary rule of the Fourth and Fourteenth Amendments.' (394 U.S. 280, 282--283, 89 S.Ct. 1044, 1046, 22 L.Ed.2d 274.) Kaiser also instructs us that the Berger decision is not applicable retroactively. The court there affirmed a decision of this court (see 21 N.Y.2d 86, 286 N.Y.S.2d 801, 233 N.E.2d 818) wherein wiretap evidence had been seized pursuant to section 813--a--later declared unconstitutional in Berger. The Supreme Court, thus, affirmed our holding that the Berger decision should be given only prospective application (21 N.Y.2d at p. 98, 286 N.Y.S.2d at p. 810, 233 N.E.2d at p. 824).

A careful examination of the Desist and Kaiser decisions reveals that the determinative factor in both cases centers on the date upon which the seizure of the evidence occurred. (See 394 U.S., at p. 282, 89 S.Ct. 1044.) Hence, if the evidence was seized in a manner constitutionally permissible at the time of seizure, it will subsequently be allowed into evidence at the defendant's trial even though changing constitutional interpretations have since made a similar seizure impermissible. ³ Since it cannot be seriously contended here that the seizure was constitutionally defective by 1966 standards, we conclude that the recordings were properly allowed into evidence at defendant's later trial.

While it is true that the wiretap order was issued in 1966 under a subsequently declared unconstitutional law, the basis upon which it was authorized closely approximates the standards set forth in Berger. A close examination of the Berger decision reveals that the major constitutional objections to section 813--a were twofold--the fact that the statute only required a reasonable ground to believe that a crime had been committed (rather than probable cause) and a lack of particularity in description of what was to be seized and the evidence sought. Here, there obviously was probable cause for the seizure by reason of the extensive observation of defendant's suspicious activities. Defendant, a known and convicted gambler, was seen to frequently use a public telephone booth, despite having access to a private telephone at his office. upon one occasion, a police officer personally heard defendant discussing sports lines on baseball games and quoting odds on the day's games to someone with whom he was in contact on that telephone. Thus, the primary constitutional defect denominated in the Berger case was certainly not present here. Moreover, the affidavit in support of the wiretap order specifically described the defendant and his suspected gambling activities, including the specific location to be observed. Under such circumstances, any deviation from the standards enunciated in Berger and Katz must be considered as harmless in light of the overwhelming evidence against defendant.

We turn then to the second question posed--that the introduction of the wiretap evidence was prohibited by section 605 of the Communications Act of 1934 (U.S.Code, tit. 47, § 605). Section 605, as it read in 1966, stated, in pertinent part, that 'no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person'. This section has been interpreted to prohibit all wiretapping of telephonic communications (see Pugach v. Sullivan, D.C., 180 F.Supp. 66, affd. 2 Cir., 277 F.2d 739, affd. 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678; Diamond v. United States, 6 Cir., 108 F.2d 859), except where one party consented to the interception (United States, v. McGuire, 2 Cir., 381 F.2d 306, 314, cert. den. Perry v. United States, 389 U.S. 1053, 88 S.Ct. 800, 19 L.Ed.2d 848). This ban upon the interception and divulgence of communications applied to both intrastate and interstate activities. (Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298; People v. Broady, 5 N.Y.2d 500, 186 N.Y.S.2d 230, 158 N.E.2d 817, cert. den. 361 U.S. 8, 80 S.Ct. 57, 4 L.Ed.2d 49.)

While the Supreme Court has long held that evidence seized in violation of section 605 was...