People v. Liberatore

• Citation: 590 N.E.2d 219,581 N.Y.S.2d 634,79 N.Y.2d 208
• Parties: , 590 N.E.2d 219 The PEOPLE of the State of New York, Appellant, v. John LIBERATORE, Respondent.
• Decision Date: 25 February 1992
• Court: New York Court of Appeals Court of Appeals

Page 634

581 N.Y.S.2d 634

79 N.Y.2d 208, 590 N.E.2d 219

The PEOPLE of the State of New York, Appellant, v. John LIBERATORE, Respondent.

Court of Appeals of New York.

Feb. 25, 1992.

[79 N.Y.2d 209] [590 N.E.2d 220] R. Michael Tantillo, Dist. Atty. (Brian D. Dennis, Canandaigua, of counsel), for appellant.

David Lee Foster, Geneva, for respondent.

[79 N.Y.2d 210] Susan H. Salomon, New York City, for Criminal Appeals Bureau of the Legal Aid Soc., amicus curiae.

OPINION OF THE COURT

ALEXANDER, Judge.

The People appeal by leave of a Judge of this Court from three orders of the Appellate Division, 167 A.D.2d 955, 562 N.Y.S.2d 465, 167 A.D.2d 956, 562 N.Y.S.2d 465 and 167 A.D.2d 955, 562 N.Y.S.2d 297, which reversed, on the law, three judgments of Ontario County Court convicting defendant, upon his guilty plea, of first degree criminal possession of a controlled substance, third degree criminal sale of a controlled substance and first degree criminal possession of stolen property and granted defendant's motion to suppress all evidence obtained as the result of eavesdropping warrants and search warrants. The Appellate Division concluded that the People failed to comply with the notice mandate of CPL 700.70. Inasmuch as we disagree for the reasons that follow, there should be a reversal.

I

Defendant's conviction in Ontario County for drug-related offenses grew out of a narcotics trafficking investigation in adjoining Wayne County. An eavesdropping warrant authorizing the interception of conversations on a telephone listed to Noemi Dessis-Carbuccia (Carbuccia warrant) was issued on May 30, 1984 by Wayne County Judge Carmen R. Parenti. The warrant application included the affidavit of State Police Investigator William Freeman and numerous attachments, including a seven-page statement of a confidential informant. Because the investigation was continuing and the identity of the informant was readily discernible from the detailed information contained in the statement, Judge Parenti directed that the informant's statement be sealed to protect the informant and avoid compromising the on-going investigation. Thus, the warrant specifically directed that the statement remain sealed "until further order of a Court having jurisdiction to order disclosure thereof." The warrant provided further that "no person who shall gain knowledge of the existence or contents of the Ex Parte Order shall thereafter divulge such information to any unauthorized individual under pain of contempt of this Court."

As part of the continuing investigation, on June 25th, Ontario County Judge Frederic T. Henry, Jr. issued an eavesdropping warrant authorizing interception of conversations on the telephone of Samuel K. Tambe. ¹ The June 25th warrant incorporated by reference the May 30th Carbuccia warrant.

The Carbuccia warrant was thereafter extended on June 29th. Thereafter, Judge Parenti issued search warrants authorizing searches of defendant and his two automobiles. These search warrants were executed on July 5th as defendant was returning to Ontario County from New York City. Fourteen ounces of cocaine were discovered in the car defendant was driving. He was arrested and subsequently indicted for criminal possession of a controlled substance in the first degree. Two other indictments were also filed against defendant, charging him with criminal sale of a controlled substance in the third degree and criminal possession of stolen property in the first degree.

Defendant was arraigned on all three indictments in Ontario County on August 29th. At arraignment, the People provided defense counsel with copies of the May 30th Carbuccia warrant, the June 25th Tambe warrant and the June 29th extension of the Carbuccia warrant. Counsel was also provided with all the accompanying applications for each warrant as well as the numerous exhibits submitted to the issuing courts. The only document not turned over was the seven-page statement of the confidential informant which had been sealed by Judge Parenti's order. In total, almost 300 pages of documents and exhibits were furnished to defense counsel.

Within the 45-day period limited by CPL 255.20, defendant sought suppression of all property and evidence seized as a result of information derived from the eavesdropping warrant, contending that the People had failed to comply with CPL 700.70 because they did not furnish the seven-page informant's statement. Defendant argued that inasmuch as the issuing Judge considered and relied upon that statement in authorizing the eavesdropping warrant, it was necessary that the information establishing the existence and reliability of the informant and the reliability of the information provided by the informant be supplied. He argued that because this was not done, the reliability and identity of the informant could not be determined; thus, failure to furnish the statement within 15 days of arraignment was a violation of CPL 700.70.

Instead of conducting a hearing on the suppression motion, Ontario County Court Judge George A. Reed, under constraint of People v. Romney, 77 A.D.2d 482, 433 N.Y.S.2d 941 [4th Dept.], transferred the motion to Judge Parenti, the issuing Judge. On January 11, 1985, Judge Parenti held a probable cause hearing. He concluded that the statement of the confidential informant was not germane to defendant's case, ² that there was sufficient probable cause for the eavesdropping warrant even in the absence of the confidential informant's statement, that there also was probable cause for the search warrants issued and that all of the statutory requirements of CPL article 700 had been met. Defendant's motion to suppress was denied and he subsequently pleaded guilty to the crimes charged.

On defendant's appeal, the Appellate Division reversed the conviction, on the law, granted the motion to suppress and vacated defendant's plea.

II

In People v. Schulz, 67 N.Y.2d 144, 501 N.Y.S.2d 12, 492 N.E.2d 120, we reaffirmed the need for "strict compliance with the provisions of New York's eavesdropping statute" (id., at 148, 501 N.Y.S.2d 12, 492 N.E.2d 120) and held that "where there has been a failure to comply with the notice provisions of CPL 700.70, and * * * neither an application for an extension of time within the 15 days provided in that statute nor a showing of good cause for noncompliance and lack of prejudice to defendant" (id., at 147, 501 N.Y.S.2d 12, 492 N.E.2d 120), evidence derived from an intercepted communication must be suppressed (see, CPL 700.70). ³ We again noted "[t]he insidiousness of electronic surveillance [which] threatens the right to be free from unjustifiable governmental intrusion into one's individual privacy" and, citing People v. Washington, 46 N.Y.2d 116, 124, 412 N.Y.S.2d 854, 385 N.E.2d 593, concluded that "law enforcement officials [must] be sensitive to the fact that there must be meticulous adherence to the terms of the warrant and the statute pursuant to which it [was] issued" (id., at 148-149, 412 N.Y.S.2d 854, 385 N.E.2d 593). We have imposed this requirement of meticulous compliance with the eavesdropping statute as being consistent with the mandate of the Legislature. The statutory provision that "a copy of the eavesdropping warrant, and accompanying application" does not provide us with sufficient guidance, however, to determine whether the Legislature would require that documents sealed by court order--a special category of accompanying material--be disclosed as well.

Applying the principle enunciated in Schulz without discussion or analysis of its relevance to the facts of this case, the Appellate Division concluded that the failure of the People to furnish this defendant with the sealed affirmation of the confidential informant, or to seek an extension of time within the 15 days provided by statute, violated CPL 700.70. Thus, the Appellate Division felt compelled to suppress all evidence derived from information flowing from the Carbuccia eavesdropping warrant. We disagree and conclude that the provisions of CPL 700.70 were not violated in the circumstances of this case.

A primary purpose of the notice requirement of CPL 700.70 is to "alert * * * criminal defendants to the existence of evidence that [can] be introduced against them at trial so that a timely decision [can] be made about whether to file a motion to suppress such evidence" (see, People v. Basilicato, 64 N.Y.2d 103, 118, 485 N.Y.S.2d 7, 474 N.E.2d 215; see also, People v. Schulz, 67 N.Y.2d 144, 151, 501 N.Y.S.2d 12, 492 N.E.2d 120, supra; Bellacosa, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 700.70, at 525).

There is no dispute that all the extensive attachments to the eavesdropping warrants and the extension, other than the sealed statement, were turned over to defendant at arraignment. Additionally, it is undisputed that the existence of the sealed statement and its general contents were made known by the affidavit of Investigator Freeman ⁴ in the warrant application. Defendant was given ample opportunity to, and in fact did, seek suppression of the eavesdropping warrant. Accordingly, the purpose of the 15-day statutory service requirement (L.1976, ch. 194, § 2) ⁵ to facilitate the service and filing of all pretrial motions within 45 days after arraignment or within 45 days after service of the papers pursuant to CPL 700.70, was accomplished (see, CPL 255.20[1]. Defendant argues, however, and the Appellate Division, citing our discussion in People v. Schulz, 67 N.Y.2d 144, 501 N.Y.S.2d 12, 492 N.E.2d 120, supra, agreed that by not turning over the sealed statement, the People failed to strictly comply with the provisions of CPL 700.70.

Our holding in Schulz, however, does not require suppression in the circumstances of this case. Schulz involved a complete failure of the People to turn over the eavesdropping warrant and application to the defendant until 61 days after his arraignment.. We rejected the...