People v. Gallina

• Decision Date: 06 September 1983
• Citation: 466 N.Y.S.2d 414,95 A.D.2d 336
• Parties: The PEOPLE, etc., Respondent, v. Salvatore GALLINA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 414

466 N.Y.S.2d 414

95 A.D.2d 336

The PEOPLE, etc., Respondent, v. Salvatore GALLINA, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 6, 1983.

Stephen P. Scaring, P.C., Mineola (Salvatore S. Russo, Mineola, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael J. Halberstam and Alan D. Rubinstein, Asst. Dist. Attys., Brooklyn, of counsel), for respondent.

Before DAMIANI, J.P., and TITONE, MANGANO and GIBBONS, JJ.

TITONE, Justice.

Defendant Salvatore Gallina appeals from a judgment convicting him, following a jury trial, of criminal sale of a controlled substance in the second degree (Penal Law, § 220.41) and imposing an indeterminate sentence of six and one-half years to life imprisonment. He contends that recordings of certain conversations overheard as the result of an eavesdropping warrant should have been suppressed because of a failure to comply with several statutory requisites governing electronic surveillance. In addition, he urges, in the alternative, that since these conversations concerned uncharged criminal conduct they were inadmissible in any event. We agree that the evidence should have been excluded and we, therefore, reverse the judgment of conviction.

The prosecution has its genesis in February, 1981, when a confidential informant introduced a New York City police detective to one Willie Kelly, a self-acknowledged narcotics dealer. Kelly gave the detective his telephone number to arrange future drug sales and a pen register was installed on Kelly's telephone line without a warrant first being obtained. ¹ On March 3 and March 12, Kelly sold a quantity of heroin to the detective.

Investigators were stymied, however, in ascertaining Kelly's source. Consequently, in May, 1981, the Kings County District Attorney applied for and obtained the first of a series of eavesdropping warrants. The initial warrants authorized the interception of communications over Kelly's telephone. As a result of the information acquired, four additional warrants were procured. They authorized the placing of a "bug" and the monitoring of telephonic communications at Salvatore's Meat Market where defendant and his brother worked. Insofar as here pertinent, the conversations took place on October 21, 1981 and concerned a future narcotics sale.

Indictments against Willie Kelly, the defendant, and others were filed in January 1982. Defendant was charged in connection with the March 3 and March 12 sales by Kelly. ² His pretrial motion to suppress the eavesdropping evidence was denied in all respects. He was convicted of only the March 3 sale.

At the outset, we note that none of defendant's conversations were intercepted as a result of the Kelly wiretaps and defendant had no proprietary interest in Kelly's telephone. Inasmuch as defendant cannot vicariously assert Kelly's rights, he lacks standing to raise any substantive claims concerning those warrants (People v. Sergi, 96 A.D.2d 911, 466 N.Y.S.2d 93; People v. Sardegna, 91 A.D.2d 671, 457 N.Y.S.2d 123; cf. Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176; People v. Edelstein, 54 N.Y.2d 306, 309, 445 N.Y.S.2d 125, 429 N.E.2d 803). While he would have standing to challenge a failure to promptly seal the tapes in accordance with CPL 700.50 (subd. 2), as "this requirement goes to the very integrity of the tapes, rather than to the intrusion created by the wiretap" (People v. Edelstein, supra, p. 309, 445 N.Y.S.2d 125, 429 N.E.2d 803), the record establishes that no use was made of any conversation intercepted as a result of those wiretaps other than to furnish a basis for the application for a warrant to engage in electronic surveillance at the meat market and that the first warrant concerning the meat market was issued prior to the time that the obligation to seal the tapes from the second Kelly warrant arose. Hence, the legal significance of any delay in sealing is academic (People v. Seidita, 49 N.Y.2d 755, 756, 426 N.Y.S.2d 463, 403 N.E.2d 169; People v. Weiss, 48 N.Y.2d 988, 989, 425 N.Y.S.2d 543, 401 N.E.2d 901; People v. Versace, 73 A.D.2d 304, 308, 426 N.Y.S.2d 61).

We turn, then, to the challenges made to the warrants directed to the meat market. Defendant contends that these warrants should not have issued because the affidavits in support failed to establish that investigative techniques other than electronic surveillance would not have sufficed (CPL 700.20, subd. 2, par. [d]; 700.15, subd. 4), that the tapes were not timely sealed, and that there was a gap in the issuance of an extension warrant during which time the eavesdropping devices remained in place in violation of CPL 700.40 and 700.35 (subd. 2). As we shall demonstrate, the latter contention is dispositive.

As noted in the classic dissents of Justices HOLMES and BRANDEIS in Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 575, 72 L.Ed. 944 et seq., electronic surveillance is a most serious intrusion on individual liberties (see, also, People v. Washington, 46 N.Y.2d 116, 121-122, 412 N.Y.S.2d 854, 385 N.E.2d 593; People v. Brenes, 42 N.Y.2d 41, 46, 396 N.Y.S.2d 629, 364 N.E.2d 1322). ³ In striking a balance between society's interest in privacy and in ferretting out crime, Congress (U.S.Code, tit. 18, § 2518, subd. [1], par. [c] ) and the Legislature (CPL 700.20, subd. 2, par. [d]; 700.15, subd. 4), sought to insure that electronic surveillance only be resorted to when it is absolutely necessary to do so (United States v. Kahn, 415 U.S. 143, 153, n. 12, 94 S.Ct. 977, 983 n. 12, 39 L.Ed.2d 225) and that it is "not to be routinely employed as the initial step in criminal investigation" (United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1827, 40 L.Ed.2d 341). ⁴ 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, subd. 4; see, e.g., United States v. Kalustian, 529 F.2d 585).

This is not to say that "all possible" investigative techniques must first be exhausted or that electronic surveillance can only be sought as a "last resort" (see, e.g., United States v. Bailey, 607 F.2d 237, 242, cert. den. sub nom. Whitney v. United States, 445 U.S. 934, 100 S.Ct. 1327, 63 L.Ed.2d 769; United States v. Kerrigan, 514 F.2d 35, 38, cert. den. sub nom. Karrigan v. United States, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249). But the issuing judicial officer, who must test the application in a "practical and commonsense fashion" (Senate Report No. 1097, 90th Cong., 2d Sess., U.S.Code Cong. & Admin.News, 1968, pp. 2112, 2190; see People v. Versace, 73 A.D.2d 304, 307, 426 N.Y.S.2d 61, supra ), must be apprised of the nature and the progress of the investigation in order to insure that electronic surveillance is more than a useful tool (People v. Romney, 77 A.D.2d 482, 484, 433 N.Y.S.2d 941; People v. Versace, supra ). Mere conclusions of the affiant will not do (e.g., United States v. Kalustian, 529 F.2d 585, 590, supra; United States v. Spagnuolo, 549 F.2d 705, 709).

Measured by this "practical and commonsense" standard, we conclude that the showings were sufficient. The first application for the warrant at the meat market contained a 76-page detailed affidavit recounting the beginning of the investigation and referring to the Kelly tapes. It set forth the progress being made and stated that "[m]ultiple police surveillances were attempted during the month of April but * * * continued to reveal little useful investigatory information", that the defendant was reluctant to discuss narcotics activities over the telephone or in public (thus suggesting the need for the "bug"), and that "there was a risk of premature disclosure if the * * * surveillance continued". The renewals each incorporated the prior applications, the preferred procedure (see Salzman v. State of Maryland, 49 Md.App. 25, 430 A.2d 847; Fishman, Wiretapping & Eavesdropping, §§ 180, 182; Pitler, N.Y.Crim.Prac. Under the CPL, § 10.52, 1979 Cum.Supp., p. 328; cf. People v. Koutnik, 37 N.Y.2d 873, 378 N.Y.S.2d 360, 340 N.E.2d 727), explained that the nature of the investigation remained the same and that the visual surveillance had been fruitless. The law requires no more (see United States v. Todisco, 667 F.2d 255, 258-259, cert. den. 455 U.S. 906, 102 S.Ct. 1250, 71 L.Ed.2d 444; United States v. Kail, 612 F.2d 443, 447, cert. den. sub nom. Freeman v. United States, 445 U.S. 966, 100 S.Ct. 1657, 64 L.Ed.2d 242; People v. Romney, 77 A.D.2d 482, 433 A.D.2d 941, supra; People v. Penna, 53 A.D.2d 941, 942, 385 N.Y.S.2d 400; cf. People v. Brenes, 53 A.D.2d 78, 80, 385 N.Y.S.2d 530, affd. on other grounds 42 N.Y.2d 41, 44, n. 1, 396 N.Y.S.2d 629, 364 N.E.2d 1322, supra ).

On the question of sealing, defendant complains that one warrant expired at midnight on September 9 but was not sealed until September 11 at 4:20 P.M. and that another warrant expired at midnight on November 11 and was not sealed until November 13 at 4:00 P.M. ⁵

CPL 700.50 (subd. 2) requires that tapes be sealed "immediately" upon the expiration of the period set forth in the warrant in order to protect their integrity (People v. Washington, 46 N.Y.2d 116, 123, 412 N.Y.S.2d 854, 385 N.E.2d 593, supra; People v. Nicoletti, 34 N.Y.2d 249, 253, 356 N.Y.S.2d 855, 313 N.E.2d 336). In People v. Edelstein, 54 N.Y.2d 306, 445 N.Y.S.2d 125, 429 N.E.2d 803, supra, the Court of Appeals explained (p. 310, 445 N.Y.S.2d 125, 429 N.E.2d 803) "that the sealing of tapes on the day following the termination date of a wiretap warrant is generally sufficient to comply with the requirement of immediate sealing" and that (p. 309, 445 N.Y.S.2d 125, 429 N.E.2d 803) "[w]hile the requirement of immediate sealing must be strictly construed, the eavesdropping statute also mandates that the courts consider...