People v. Fino
| Decision Date | 28 May 1969 |
| Citation | 24 N.Y.2d 1020,250 N.E.2d 245,302 N.Y.S.2d 842 |
| Parties | , 250 N.E.2d 245 PEOPLE, etc., Appellant, v. Nicholas FINO et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Fourth Department, 29 A.D.2d 227, 287 N.Y.S.2d 440.
Michael F. Dillon, Buffalo (Peter J. Notaro, Buffalo, of counsel), for appellant.
Peter L. Parrino, Buffalo, for defendant-respondent.
Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo (Herald Price Fahringer, Buffalo, of counsel for Nicholas Mauro, Eugene W. Salisbury, Buffalo, of counsel for Ralph Velocci), for defendants-respondents.
Defendants were convicted of violations of Sections 986--b () and 812 (attempt to destroy evidence) of the former Penal Law, Consol.Laws, c. 40.
Defendants made a pre-trial motion to suppress evidence. Section 813--a of the Code of Criminal Procedure required that oath or affirmation seeking an ex parte order for eavesdropping must describe the person or persons whose communications, conversations, or discussions are to be overheard or recorded and the purposes thereof. Neither the order authorizing eavesdropping nor affidavit on which it was made contained any such descriptions.
The defendants were convicted of violating Sections 986--b and 812 of the former Penal Law.
The Erie County Court, Charles J. Gaughan, J., rendered judgments, and the defendants appealed.
The Appellate Division entered orders February 15, 1968 which reversed, on the law and the facts, the judgments of the Erie County Court and dismissed the indictments. The Appellate Division held that the affidavit and order for eavesdropping were fatally defective because the order was a 'roving commission' authorizing the police for a period of two months to intercept and overhear (without limitation as to the persons or their purposes) all conversations transmitted over described telephone.
The People of the State of New York appealed to the Court of Appeals by permission of an Associate Judge of the Court of Appeals.
Orders affirmed. The question of defendants' standing to challenge the validity of telephone interception orders which supported the search warrant-- the sole ground for reversal suggested in this court by the People--was not raised at Trial Term or at the Appellate Division. No special circumstance is shown why the question should be permitted to be raised now for the first time.
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...the appeal in chief. Absent special circumstances, here non-existent, the question cannot be raised now. See People v. Fino, 24 N.Y.2d 1020, 302 N.Y.S.2d 842, 250 N.E.2d 245 (1969). The trial court erroneously ruled that the unlawfully seized evidence was admissible against all the defendan......
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