People v. Guenther

• Decision Date: 09 April 1974
• Citation: 354 N.Y.S.2d 827,77 Misc.2d 643
• Parties: The PEOPLE of the State of New York, v. Kenneth GUENTHER, Defendant.
• Court: New York County Court

Page 827

354 N.Y.S.2d 827

77 Misc.2d 643

The PEOPLE of the State of New York, v. Kenneth GUENTHER, Defendant.

Monroe County Court.

April 9, 1974.

Jack B. Lazarus, Dist. Atty. (Donald J. Wisner, and James R. Boehler, Asst. Dist. Attys., Rochester, of counsel), for the People

Robert C. Napier, Rochester (Felix V. Lapine, Rochester, of counsel), for defendant.

DECISION

EUGENE W. BERGIN, Judge.

The within motion was brought on by the defendant for an Order, pursuant to Article 710 of the New York Criminal Procedure Law quashing an eavesdropping warrant and suppressing evidence seized.

On October 5, 1973, I was the issuing magistrate for an eavesdropping order and warrant. As a result of that order, the defendant, Kenneth Guenther, has been charged with six counts of Promoting Gambling in the second degree, in violation of New York Penal Law, section 225.05. The alleged violations are misdemeanors and pending in the City Court, City of Rochester, Monroe County, New York. The defendant has pled 'not guilty' to all charges.

On January 23, 1974, a motion was brought before the Honorable Alphonse L. Cassetti, Rochester City Court Judge, for Orders quashing the eavesdropping warrant, granting discovery and inspection and directing the production of a bill of particulars.

In the Order of the Honorable Alphonse L. Cassetti, it was stated:

'ORDERED, that any and all motions regarding the eavesdropping warrant herein be heard by the Honorable Eugene W. Bergin, Judge of the County Court, County of Monroe . . .'

The City Court Judge did order that the defendant be afforded an opportunity to listen to any tape recordings recorded pursuant to the execution of the eavesdropping warrant and that the District Attorney furnish certain particulars requested by the defendant.

On March 20, 1974, the within motion was brought on before this court for a hearing.

The question presented is whether the trial court or the issuing Judge is the proper forum to determine all motions regarding the eavesdropping warrant. Under the former Code of Criminal Procedure contravention procedures were prescribed in section 807, which provided:

'If the grounds on which the warrant was issued be controverted, the judge, justice or magistrate must take testimony in relation thereto.'

In the case of People v. Gray (61 Misc.2d 769, 306 N.Y.S.2d 487), decided under former law, the Court held that a warrant must be controverted only before the issuing Magistrate (61 Misc.2d 769 at 772, 306 N.Y.S.2d 487).

Our present Criminal Procedure Law, section 710.20 provides that evidence may be suppressed or excluded upon the ground that it:

'2. Consists of a record or potential testimony reciting or describing declarations or conversations overheard or recorded by means of eavesdropping, obtained under circumstances precluding admissibility thereof in a criminal action against such defendant.'

With regard to where such motions must be made, C.P.L. 710.50 provides as follows:

'1. The particular courts in which motions to suppress evidence must be made are as follows:

* * * (c) If an information, a simplified information, a prosecutor's information or a misdemeanor complaint is pending in a local criminal court, the motion must be made in such court.'

The commission staff comments under section 710.50 state (McKinney's Cons. Laws of N.Y., Book 11A, C.P.L., p. 290): 'Only when the charge is a misdemeanor or a petty offense alleged iin an information . . . pending in a local criminal court--in which case there is no indication that the action or offense will ever be handled by a superior court--is the motion made in the local criminal court (par. c).'

People v. Fusco, 75 Misc.2d 981, 348 N.Y.S.2d 858, decided by the County Court, Nassau County, involved a motion to contravene a wiretap order and whether or not the motion...