People v. Fonville

Decision Date02 October 1998
Parties, 1998 N.Y. Slip Op. 8176 PEOPLE of the State of New York, Respondent, v. Tracy R. FONVILLE, Appellant.
CourtNew York Supreme Court — Appellate Division

Linda S. Reynolds by Vincent Gugino, Buffalo, for Appellant.

Frank J. Clark by Steven Meyer, Buffalo, for Respondent.

PRESENT: DENMAN, P.J., PINE, WISNER, BALIO and FALLON, JJ.

DENMAN, Justice.

Defendants, Tracy R. Fonville and Dorian D. Batchelor, each appeal from a judgment of Supreme Court convicting each, following a joint trial, of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ), criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ), conspiracy in the second degree (Penal Law § 105.15), criminal possession of a controlled substance in the seventh degree (two counts) (Penal Law § 220.03) and criminally using drug paraphernalia in the second degree (three counts) (Penal Law § 220.50[1], [2], [3] ). Fonville was sentenced to 22 years to life and Batchelor was sentenced to 25 years to life.

Defendants argue that the judgments must be reversed, certain evidence suppressed, and the indictment dismissed on several grounds, of which we need consider only three. We conclude that all eavesdropping evidence, and all tangible evidence derived therefrom, should be suppressed because of the failure of the applicants to show the necessity for the eavesdropping warrants, and because the eavesdropping warrant applications contained material falsehoods and omissions relating to the issue of necessity (see, CPL 700.15[4]; 700.20[2] ). Additionally, the eavesdropping evidence seized pursuant to the Walker and Batchelor warrants, and tangible evidence seized pursuant to the search warrant issued on June 9, 1994, after the obligation to seal the tapes arose, should be suppressed because of the failure to seal the tapes immediately (see, CPL 700.50[2] ). Consequently, the judgments of conviction should be reversed, the motions to suppress the intercepted communications and tangible evidence granted, and the indictment dismissed.

BACKGROUND

Defendants and their accomplices were indicted for multiple drug offenses in June 1994. The indictment resulted from a State Police investigation that began in April 1994 and culminated in June 1994. The investigation proceeded generally through the following stages: investigation into the activities of Nicholas Buster and associates between April 20 and April 25, 1994; eavesdropping on Buster's telephone pursuant to a warrant issued on April 26, 1994 and amended on May 6, 1994; eavesdropping on the telephone of Samuel Walker (a/k/a Samuel Harris) pursuant to a warrant issued on May 10, 1994 and amended on May 19, 1994; eavesdropping on Batchelor's telephone pursuant to a warrant issued on May 24, 1994; physical surveillance of Buster, Harris, Andre Thompson, Fonville and Batchelor in New York and Florida throughout May and early June 1994; the arrest of Batchelor at the Buffalo Airport at 12:45 P.M. on June 6, 1994; the seizure of drug packaging material from his luggage pursuant to a warrant issued on June 5; the arrest of Fonville at the airport later that day; the seizure of cocaine from her luggage pursuant to a warrant issued on June 5; the arrest of defendants' accomplices, including Walker, later on June 6; the seizure of tangible evidence from 64 Brunswick Boulevard pursuant to a warrant issued on June 6; and the subsequent seizure of tangible evidence from 216 Summer Street pursuant to a warrant issued on June 9, 1994.

The convictions for first and third degree possession stemmed from the seizure of 1.5 kilograms of cocaine from Fonville's luggage. The convictions for seventh degree possession stemmed from the seizure of smaller amounts of cocaine and heroin from 216 Summer Street. The convictions for using drug paraphernalia stemmed from the seizure of dilutants, glassine envelopes, and a scale from 216 Summer Street. The convictions for conspiracy were supported by, among other evidence, the contraband and other items seized pursuant to the search warrants and the incriminating conversations intercepted pursuant to the eavesdropping warrants.

THERE WAS AN INSUFFICIENT SHOWING OF NECESSITY FOR ISSUANCE

OF THE EAVESDROPPING WARRANTS; FURTHER, THE APPLICATIONS

CONTAINED FALSEHOODS AND MATERIAL OMISSIONS CONCERNING THE

NECESSITY FOR THE WIRETAPS.

Defendants' first two challenges to the eavesdropping warrants are interrelated. Defendants challenge the sufficiency of the showing of necessity in the applications for the initial Buster eavesdropping warrant and its amendment; for the initial Walker eavesdropping warrant and its amendment; and for the Batchelor eavesdropping warrant. 1

No eavesdropping warrant may issue absent "a showing that normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous to employ" (CPL 700.15[4] ). An application for an eavesdropping warrant "must contain * * * [a] full and complete statement of facts establishing that normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ, to obtain the evidence sought" (CPL 700.20[2][d] ). That requirement of necessity is imposed as a matter of Federal constitutional law under Supreme Court decisions applying the Fourth Amendment's reasonableness requirement to electronic surveillance (see, Berger v. New York, 388 U.S. 41, 58-60, 87 S.Ct. 1873, 18 L.Ed.2d 1040; see also, United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 40 L.Ed.2d 341). Further, the necessity requirement is set forth in a Federal statute, which binds the States by its terms and as a matter of Federal supremacy (see, People v. Teicher, 52 N.Y.2d 638, 652, 439 N.Y.S.2d 846, 422 N.E.2d 506; People v. Shapiro, 50 N.Y.2d 747, 763-765, 431 N.Y.S.2d 422, 409 N.E.2d 897; see generally, 18 USC § 2510 et seq; United States v. Donovan, 429 U.S. 413, 435, 97 S.Ct. 658, 50 L.Ed.2d 652). The rule ensures that electronic surveillance be resorted to with restraint and only when necessary (see, United States v. Kahn, 415 U.S. 143, 153, n. 12, 94 S.Ct. 977, 39 L.Ed.2d 225). It is not to be routinely employed as an initial step in a criminal investigation (see, United States v. Giordano, supra, at 515, 94 S.Ct. 1820; People v. Candella, 171 A.D.2d 329, 332, 578 N.Y.S.2d 286).

The law does not require that all possible investigative techniques, or any particular investigative technique, be tried, or that electronic surveillance be sought only as a last resort (see, People v. Gallina, 95 A.D.2d 336, 339-340, 466 N.Y.S.2d 414). However, police must apprise the issuing court of the nature and progress of the investigation, and of the difficulties inherent in the use of normal law enforcement methods, sufficient to ensure that eavesdropping is more than just a "useful tool" in the investigation (see, People v. Hafner, 152 A.D.2d 961, 962, 543 N.Y.S.2d 786; People v. Baris, 116 A.D.2d 174, 187, 500 N.Y.S.2d 572, lv. denied 67 N.Y.2d 1050, 504 N.Y.S.2d 1025, 495 N.E.2d 358; People v. Carson, 99 A.D.2d 664, 472 N.Y.S.2d 68). Conclusory allegations of necessity are insufficient to support issuance of the warrant (see, People v. Bavisotto, 120 A.D.2d 985, 502 N.Y.S.2d 867, lv. denied 68 N.Y.2d 912, 508 N.Y.S.2d 1033, 501 N.E.2d 606, cert. denied 480 U.S. 933, 107 S.Ct. 1572, 94 L.Ed.2d 763; People v. Viscomi, 113 A.D.2d 76, 77-78, 495 N.Y.S.2d 298, lv. denied 67 N.Y.2d 658, 499 N.Y.S.2d 1055, 490 N.E.2d 572). The reviewing court must test the People's showing of necessity in a practical and commonsense fashion in the context of the objectives of the investigation (see, People v. Hafner, supra, at 962, 543 N.Y.S.2d 786; People v. Campaigni, 151 A.D.2d 1010, 542 N.Y.S.2d 449, lv. denied 74 N.Y.2d 845, 546 N.Y.S.2d 1010, 546 N.E.2d 193; People v. Baris, supra, at 187, 500 N.Y.S.2d 572). Police must strictly comply with all requirements of the eavesdropping statutes in connection with each warrant sought (see, People v. Bialostok, 80 N.Y.2d 738, 743-745, 594 N.Y.S.2d 701, 610 N.E.2d 374, mot to recall opn. denied 81 N.Y.2d 995, 599 N.Y.S.2d 532, 615 N.E.2d 1016; People v. Liberatore, 79 N.Y.2d 208, 212-213, 581 N.Y.S.2d 634, 590 N.E.2d 219), and the burden of establishing compliance rests with the prosecution (see, People v. Winograd, 68 N.Y.2d 383, 390-391, 509 N.Y.S.2d 512, 502 N.E.2d 189). Absent "meticulous" compliance (People v. Liberatore, supra, at 213, 581 N.Y.S.2d 634, 590 N.E.2d 219), police lack authority to wiretap, any interceptions they make are unlawful, and such interceptions and any evidence derived therefrom are inadmissible (see, People v. Capolongo, 85 N.Y.2d 151, 159-160, 165, 623 N.Y.S.2d 778, 647 N.E.2d 1286; People v. Bialostok, supra, at 747, 594 N.Y.S.2d 701, 610 N.E.2d 374; People v. Winograd, supra, at 391, 509 N.Y.S.2d 512, 502 N.E.2d 189; People v. Schulz, 67 N.Y.2d 144, 148, 501 N.Y.S.2d 12, 492 N.E.2d 120; see generally, CPLR 4506[1], [3], [4] ).

Defendants also contend that the warrant applications contain material false allegations or omissions concerning the necessity for eavesdropping, particularly the potential or actual fruitfulness of surveillance and other investigative alternatives to eavesdropping. A warrant may be vitiated upon a showing that it was issued on the basis of false averments of the affiant (see generally, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667; People v. Cohen, 90 N.Y.2d 632, 637, 665 N.Y.S.2d 30, 687 N.E.2d 1313; People v. Alfinito, 16 N.Y.2d 181, 186, 264 N.Y.S.2d 243, 211 N.E.2d 644). In challenging the veracity of the affiant, a defendant must show, by a preponderance of the evidence, that the affiant knowingly or recklessly made a materially false representation (see, Franks v. Delaware, supra, at 155-156...

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    • New York Supreme Court Appellate Division
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    ...believe that they would be offered against him, defendant had standing to challenge the warrants (see CPL 710.20[2] ; People v. Fonville, 247 A.D.2d 115, 118, 681 N.Y.S.2d 420 n. [1998]; People v. Truver, 244 A.D.2d 990, 990–991, 665 N.Y.S.2d 995 [1997] ). County Court did not, however, err......
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