People v. Kaiser

• Citation: 286 N.Y.S.2d 801,233 N.E.2d 818,21 N.Y.2d 86
• Parties: , 233 N.E.2d 818 The PEOPLE of the State of New York, Respondent, v. Thomas R. KAISER, Appellant.
• Decision Date: 07 December 1967
• Court: New York Court of Appeals

Page 801

286 N.Y.S.2d 801

21 N.Y.2d 86, 233 N.E.2d 818

The PEOPLE of the State of New York, Respondent, v. Thomas R. KAISER, Appellant.

Court of Appeals of New York.

Dec. 7, 1967.

Peter L. F. Sabbatino and Henry J. Boitel, New York City, for appellant.

William Cahn, Dist. Atty. (Henry P. DeVine, Mineola, of counsel), for respondent.

KEATING, Judge.

Irving Holzman was an executive of several corporations engaged in the distribution and operation of coin-operated equipment whose enterprises reached into four of the five boroughs of New York City as well as Nassau and Suffolk Counties. In recent years Mr. Holzman's business ventures grew and prospered to such an extent that the self-appointed 'family' of sharers in the prosperity of honest businessmen determined that the time had come for Mr. Holzman to share his wealth--'to give up a piece' of his business.

Sometime during the early part of June, 1964 a concerted effort was commenced to extort $25,000 from Mr. Holzman as well as a 25% Share of his business interests. As the arrangement was explained to Mr. Holzman, 'If at the end of (a) week you have $1 left, (we) take 25 cents and you keep 75 cents.'

Mr. Holzman, unmoved by the 'family's' generosity and shaken by an assault on his wife by certain members of the 'family', described to him as 'animals', contacted the Nassau County police.

During the month of June the police, with the consent of Mr. Holzman, through the use of wiretaps and bugs, recorded numerous conversations of Mr. Holzman and one Salvator Granello, known to his 'family' and 'animals' as Sally Burns. These recordings clearly established the existence of an extortion conspiracy on the part of Granello, Dino Conte and others.

As Mr. Holzman's adamance persisted through June, the 'family' apparently became more anxious. On the morning of June 30, 1964 Mr. Holzman's daughter, Mrs. Ronald Billings, then pregnant and residing in Plainview, received a call which, from its contents, could only have been made by one of the 'animals.' Mrs. Billings was advised that 'if your father doesn't cooperate we'll come to Sylvia Lane (Plainview) and kick your * * * pregnant belly in.'

With this threat to the family of Mr. Holzman, the District Attorney's office determined that it could best protect Mr. Holzman and his family and determine precisely who was responsible for the threats by recording the telephonic communications made by Salvatore Granello and Dino Conte from several bars which they frequented and from which they had previously communicated with Mr. Holzman.

In a petition and affidavit filed pursuant to section 813--a of the Code of Criminal Procedure, an assistant district attorney of Nassau County asked for a court order to make the necessary wiretaps.

In testimony made under oath the assistant district attorney related, with particularity and detail, the events which had transpired up to that point and which have been briefly narrated above.

At the close of this testimony the following colloquy took place:

'The Court: At the present time have you been able to get any clue which would lead you definitely to the caller (who threatened Mrs. Billings)?

Mr. Levy: We have not, your Honor.

The Court: You feel as though this tap will assist you in that quest?

Mr. Levy: Yes, your Honor.

The Court: From your experience over the years do you feel that there is reasonable ground to believe that evidence of crime may be obtained by intercepting messages over this telephone?

Mr. Levy: Yes, your Honor. This telephone has been used by Salvatore Granello alias Sally Burns in telephone conversations with the complainant, Irving Holzman, in regard to the demand for $25,000 and 25 per-cent of his business.

The Court: So that in addition to the alleged extortion you feel faced here with the threats of violence and physical harm to innocent people?

Mr. Levy: Yes, your Honor, and the investigation regarding the assault on Mrs. Ruth Holzman at her home in Nassau County as well as the threatening telephone call to Mrs. Billing(s).

The Court: I am satisfied that there is reasonable ground for granting your application.'

The order issued by Justice SPITZER in compliance with the provisions of section 813--a recited the particular telephone numbers involved as well as their locations and went on to order 'that under and pursuant to the provisions of Article I, Section 12, of the Constitution of the State of New York and the statutes relating thereto, and under and pursuant to the provisions of Section 813--a of the Code of Criminal Procedure of the State of New York and the statutes relating thereto, the District Attorney of Nassau County and the said Norman J. Levy as an Assistant District Attorney of Nassau County, and any and all persons employed or assigned to the control and direction of the District Attorney of Nassau County and the said Norman J. Levy be, and they hereby are, authorized and empowered to intercept and record all telephone communications made by and to Salvatore Granello, Dino Conte and any and all other persons communicating by both incoming and outgoing calls over the telephone located at 255 West 43rd Street, New York County, New York, now designated as 121 LW 4--2523 and by whatsoever number the said telephone and telephone line may be hereafter designated'.

The order was to be effective from July 1, 1964 until August 29, 1964.

On the evening of July 3 and morning of July 5 during the course of the tap made on the telephone located at the Headline Bar, there were recorded conversations between Dino Conte and the defendant-appellant in this action, Thomas Kaiser. The conversations clearly and beyond any reasonable doubt implicated the defendant as a co-conspirator who had supplied Granello with detailed information regarding the operation of Mr. Holzman's business enterprises. In addition both conversations involved discussions of what should be done in light of Mr. Holzman's intransigence. The defendant to his credit appears to have been against terrorizing him.

On July 15, 1964 Granello, Conte and Kaiser were arrested, and on July 16, 1964 Kaiser was arraigned on an indictment charging him with coercion, attempted extortion, conspiracy to commit extortion, assault second degree and burglary second degree. The defendant was convicted, after a trial by jury, of all but the latter two crimes. At the trial and over the objection of defense counsel the transcripts of wiretap recordings made on July 3 and 5 were admitted into evidence.

Alleging, among other things, that the admission of this evidence was reversible error, the defendant appealed to the Appellate Division (Second Department). The court unanimously affirmed his conviction. The defendant appeals to this court by permission of the Chief Judge.

The defendant argues on this appeal that the Supreme Court in Berger v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), struck down as unconstitutional on its face the very statute which authorized the wiretap order and therefore the evidence seized pursuant to that order was erroneously admitted. The defendant urges, in addition, that all wiretap evidence should be held to be inadmissible because the seizure and divulgence of the evidence constitutes a violation of section 605 of the Federal Communications Act.

In Berger v. State of New York (supra), a case which involved the admissibility of evidence obtained by the use of a bugging device, the Supreme Court struck down section 813--a of the Code of Criminal Procedure. The statute read as follows: 'An ex parte order for eavesdropping as defined in subdivisions one and two of section seven hundred thirty-eight of the penal law may be issued by any justice of the supreme Court or judge of a county court or of the court of general sessions of the county of New York upon oath or affirmation of a district attorney, or of the attorney-general or of an officer above the rank of sergeant of any police department of the state or of any political subdivision thereof, that there is reasonable ground to believe that evidence of crime may be thus obtained, and particularly describing the person or persons whose communications, conversations or discussions are to be overheard or recorded and the purpose thereof, and, in the case of a telegraphic or telephonic communication, identifying the particular telephone number or telegraph line involved. In connection with the issuance of such an order the justice or judge may examine on oath the applicant and any other witness he may produce and shall satisfy himself of the existence of reasonable grounds for the granting of such application. Any such order shall be effective for the time specified therein but not for a period of more than two months unless extended or renewed by the justice or judge who signed and issued the original order upon satisfying himself that such extension or renewal is in the public interest. Any such order together with the papers upon which the application was based, shall be delivered to and retained by the applicant as authority for the eavesdropping authorized therein. A true copy of such order shall at all times be retained in his possession by the judge or justice issuing the same, and, in the event of the denial of an application for such an order, a true copy of the papers upon which the application was based shall in like manner be retained by the judge or justice denying the same.'

The Supreme Court, after examining the statute, concluded that it was 'too broad in its sweep resulting in a trespassory intrusion into a constitutionally protected area and is, therefore, violative of the Fourth and Fourteenth Amendments' (388 U.S., supra, p. 44, 87 S.Ct. p. 1876). Specifically the court found the statute 'defective on its face' for several reasons: 'Eavesdropping is authorized without requiring belief that any particular offense has been or is being committed; nor that the...