People v. Gallina

• Decision Date: 15 October 1984
• Citation: 104 A.D.2d 953,480 N.Y.S.2d 570
• Parties: The PEOPLE, etc., Respondent, v. Phillip GALLINA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 570

480 N.Y.S.2d 570

104 A.D.2d 953

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

Supreme Court, Appellate Division,

Second Department.

Oct. 15, 1984.

Stephen P. Scaring, P.C., Mineola (Salvatore S. Russo, New York City, on brief), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Alan P. Root, Asst. Dist. Attys., Brooklyn, of counsel), for respondent.

Before GIBBONS, J.P., and BRACKEN, O'CONNOR and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 17, 1983, convicting him of criminal sale of a controlled substance in the first degree and criminal sale of a controlled substance in the second degree, upon a jury verdict, and imposing sentence. This appeal brings up for review the denial, after a hearing, of defendant's motion to suppress evidence obtained as a result of wiretaps (ADLER, J.).

Judgment reversed, on the law, motion to suppress granted to the extent that any evidence obtained as a result of the wiretap orders granted June 18, 1981 and September 15, 1981, respectively, and any subsequent extension thereof are suppressed, and new trial ordered.

Defendant stands convicted of selling heroin to an undercover officer on July 30, 1981 and August 21, 1981. During the investigation which led to defendant's arrest, a series of wiretap orders were issued. The tapes of conversations intercepted as a result of those wiretaps formed the principal evidence admitted against defendant at his trial. On this appeal, defendant contends that the tapes of conversations intercepted as a result of those eavesdropping warrants should have been suppressed because of the District Attorney's failure to comply with statutory requisites governing wiretap orders. We agree that certain of the tapes should have been excluded and, therefore, we reverse the judgment of conviction.

We had occasion previously to review, on the codefendants' appeals, the series of wiretap orders in issue here (People v. Troia, 104 A.D.2d 389, 478 N.Y.S.2d 715 People v. Gallina 95 A.D.2d 336, 466 N.Y.S.2d 414). We determined that the tapes procured as a result of a warrant that had been issued on September 15, 1981 were not admissible because the September 15 warrant extending a prior order was invalid having been obtained six days after the original warrant had expired (People v. Gallina, supra, pp. 341-342, 466 N.Y.S.2d 414). Any further extension, i.e., the warrant issued on October 13, 1981, was also held to be invalid (People v. Gallina, supra, p. 342, 466 N.Y.S.2d 414). The People offer no compelling reason why we should deviate from that earlier holding.

The question of whether the warrant issued on June 18, 1981 was an unlawful extension of the prior wiretap order issued on May 8, 1981 was not addressed by this court on the earlier appeals because neither codefendant had standing to challenge the validity of the wiretap orders. Neither of the codefendants' conversations was intercepted as a result of the May 8 or June 18 wiretaps, nor did they have a proprietary interest in the telephone being tapped (see People v. Gallina, supra, p. 338, 466 N.Y.S.2d 414; 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). Defendant herein was a party to the taped conversations procured as a result of those wiretaps and, therefore, has the requisite standing to raise substantive claims concerning those warrants.

We hold that the evidence derived from the wiretap order of June 18, 1981 was inadmissible. The original warrant expired on June 9, 1981. It was not until June 18, 1981, i.e., nine days after the original order had terminated, that an application for an extension was made. The extension was granted, with an authorization to terminate on July 17, 1981. Consistent with our reasoning in People v. Gallina, 95 A.D.2d 336, 342, 466 N.Y.S.2d 414, supra, the statutory...