People v. Gibson

• Decision Date: 19 February 1969
• Parties: , 246 N.E.2d 349 The PEOPLE of the State of New York, Respondent, v. William GIBSON, Appellant. The PEOPLE of the State of New York, Respondent, v. Richard GOLDSTON, Appellant. The PEOPLE of the State of New York, Respondent, v. Clarence HIGHTOWER, Appellant. The PEOPLE of the State of New York, Respondent, v. Heyward JONES, Appellant. The PEOPLE of the State of New York, Respondent, v. Jesse KUYKENDALL, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 496

298 N.Y.S.2d 496

23 N.Y.2d 618, 246 N.E.2d 349

The PEOPLE of the State of New York, Respondent, v. William GIBSON, Appellant.

The PEOPLE of the State of New York, Respondent, v. Richard GOLDSTON, Appellant.

The PEOPLE of the State of New York, Respondent, v. Clarence HIGHTOWER, Appellant.

The PEOPLE of the State of New York, Respondent, v. Heyward JONES, Appellant.

The PEOPLE of the State of New York, Respondent, v. Jesse KUYKENDALL, Appellant.

Court of Appeals of New York.

Feb. 19, 1969.

Bruce K. Carpenter and Herald Price Fahringer, Buffalo, for appellants.

Michael F. Dillon, Dist. Atty. (Leslie G. Foschio, Buffalo, of Counsel), for respondent.

BERGAN, Judge.

Each of the five cases heard together on this appeal involves a conviction for the sale of narcotics in violation of section 1751 (subd. 1) of the former Penal Law; and, additionally, all the cases share a common question: whether the transmission to police by an informant by means of a radio device concealed on his person of incriminating conversations with defendants is a violation of their constitutional rights.

The New York statute prohibiting eavesdropping and making it a crime expressly excepts from its interdiction of conversations overheard through instrumental means by persons not present, those heard with consent of 'a party to' (former Penal Law, § 738, subd. 2) or 'of at least one party' (new Penal Law, Consol.Laws, c. 40, § 250.00) to the conversation.

Such transmission of a conversation by one party to it, to be heard by persons not present, has been held in circumstances quite like those involved here not to violate the right of privacy protected by the Fourth Amendment (On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270).

The use of a tape recorder by a party to a conversation to preserve the exact conversation and provide for its re-enactment, rather than a contemporaneous transmittal, has likewise been held not to violate the constitutional rights of the accused (Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462; see, also, Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394, which rested on Lopez).

The basic rationale of these decisions is that the real breach of privacy is the deception practiced by a party to the private conversation itself and that the problem is essentially the same whether he later tells about the conversation on the basis of a good memory, or from notes made immediately after it, or uses the more sophisticated devices to which our times have become accustomed. This concept is developed especially in Lopez (supra, p. 439, 83 S.Ct. 1381). Its logic follows the closely similar reasoning in accepting from an informer proof of private conversations not bolstered by transmission or recording (Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374).

Appellants say, however, that the teaching of these cases has been made obsolete by Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, which held that the interception of a private telephone conversation by attaching an electronic device on the outside of a public telephone booth used by one of the parties to the conversation was a violation of Fourth Amendment rights.

But ...