People v. Guenther
| Decision Date | 10 February 1975 |
| Citation | 366 N.Y.S.2d 306,81 Misc.2d 258 |
| Parties | The PEOPLE of the State of New York v. Kenneth GUENTHER, Defendant. |
| Court | New York City Court |
Telephonic interceptions of conversations with defendant, Kenneth Guenther, were made over a ten (10) day period, pursuant to an eavesdropping warrant. Upon cessation of the eavesdropping, the tapes were placed in a gym-type locker shared by the police officers who had made the intercepts. The locker was secured by a key-type padlock, and the only keys to that padlock were in the possession of the two officers who shared the locker. The only time the tapes were removed from the locker was when duplicate recordings were made and when the tapes were taken to the judge who issued the warrant for sealing, which was some seven (7) days after the eavesdropping had ceased.
There is no claim that the tape recordings have been altered or tampered with. Nevertheless, the defendant has moved, after a pre-trial suppression hearing, to suppress the three (3) tapes, pursuant to Sections 710.20, subd. 2 and 710.60 of the Criminal Procedure Law of the State of New York.
Section 700.35, subd. 3, C.P.L., provides as follows: '. . . The recording of the contents of any such communication must be done in such a way as will protect the recording from editing or other alterations.'
Section 700.50, subd. 2, C.P.L., reads as follows: 'Immediately upon the expiration of the period of an eavesdropping warrant, the recordings of communication made pursuant to subdivision three of section 700.35 must be made available to the issuing justice and sealed under his directions.'
Upon the cessation of the eavesdropping, each tape was placed in a plastic container and certain information was written on the label of the container and initialed by the officer. The plastic containers were not placed in an evidence envelope and evidence tape placed on the flap with proper notations and initials on the tape. Nor, in the absence of evidence envelopes, were the plastic containers encircled with evidence tape to insure their integrity and authenticity. Also, despite the departmental rule that evidence seized, such as contraband, guns, money and drugs, was not to be kept in lockers, the tapes were so kept.
Although there was a long weekend in the middle of the seven (7) day delay (Saturday, Sunday and a legal holiday on Monday) there was no attempt to contact the issuing judge on the day after the cessation of the wire tap, nor the next day, nor any concrete testimony of any attempt for seven (7) days. Duplicate recordings were made, but that only...
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People v. Winograd
...does not cease on weekends nor holidays" ' " (quoting People v. Pecoraro, 58 A.D.2d 462, 470, 397 N.Y.S.2d 60; People v. Guenther, 81 Misc.2d 258, 259, 366 N.Y.S.2d 306). Thus, as in Basilicato (supra), where no excuse is offered for the failure to contact the issuing Justice over the weeke......
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People v. Basilicato
...enforcement does not cease on weekends nor holidays' " (People v. Pecoraro, 58 A.D.2d 462, 470, 397 N.Y.S.2d 60; People v. Guenther, 81 Misc.2d 258, 259, 366 N.Y.S.2d 258). There was, therefore, a failure to justify the delay in sealing, making inadmissible the contents of the intercepted c......
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People v. Washington
... ... In sum, whether it be measured from the expiration of the final order or that under which the defendant's conversations were seized, the delay in this case was egregious (compare People v. Pecoraro, 58 A.D.2d 462, 397 N.Y.S.2d 60, Supra (7 days); People v ... Guenther, 81 Misc.2d 258, 366 N.Y.S.2d 306 (7 days); People v. Scaccia, 55 A.D.2d 444, 390 N.Y.S.2d 743 (18 and 15 days); People v. Glasser, 58 A.D.2d 448, 396 N.Y.S.2d 422, Supra (41 days); People v. Simmons, 84 Misc.2d 749, 378 N.Y.S.2d 263, resettled 86 Misc.2d 737, 384 N.Y.S.2d 367, affd. 54 A.D.2d 624, ... ...
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United States v. Ricco, 75 Cr. 411.
...explained delay in sealing was equivalent to an unexplained absence of seal, and suppressed the tapes.13 Similarly, in People v. Guenther, 81 Misc.2d 258, 366 N.Y.S.2d 306 (City Ct. Monroe Ct. 1975) a motion to suppress wiretaps was granted where, in violation of departmental rules police o......