People v. Manuli

• Decision Date: 06 August 1984
• Parties: The PEOPLE, etc., Respondent, v. Thomas MANULI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 712

478 N.Y.S.2d 712

104 A.D.2d 386

The PEOPLE, etc., Respondent, v. Thomas MANULI, Appellant.

Supreme Court, Appellate Division,

Second Department.

Aug. 6, 1984.

Burke & McGlinn, Suffern (Patrick T. Burke, Suffern, of counsel), for appellant.

Ronald Goldstock, Deputy Atty. Gen., White Plains (Michael Goldsmith, Joan Gabbidon, New York City, and Loretta Bennedetto Marvel, White Plains, of counsel), for respondent.

Before LAZER, J.P., and GIBBONS, THOMPSON and BOYERS, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Rockland County, rendered September 6, 1983, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial of defendant's motion to suppress evidence obtained pursuant to an eavesdropping warrant.

Judgment affirmed, and case remitted to the County Court, Rockland County, for further proceedings pursuant to CPL 460.50 (subd. 5).

Although the Supreme Court of the United States has recently held that reasonable police reliance on a duly executed search warrant will save a search even though the absence of probable cause for issuance of the warrant is later established (see United States v. Leon, 468 U.S. 897, 104 S.Ct. 3430, 81 L.Ed.2d ---), we need not now decide how that holding affects State constitutional law, for we are not persuaded by defendant's claim that probable cause in support of the eavesdropping warrant was lacking. Initially, we note that the probable cause required for the issuance of an eavesdropping warrant is the same as that required for a search warrant (People v. Kaiser, 21 N.Y.2d 86, 96, 286 N.Y.S.2d 801, 233 N.E.2d 818, affd sub nom. Kaiser v. New York, 394 U.S. 280, 89 S.Ct. 1044, 22 L.Ed.2d 274). Although in determining whether a warrant is to be deemed more than a mere rubber stamp of the application and supporting affidavits it must appear that the magistrate has conducted a "measured and comprehensive examination into the basis for the warrant" (People v. Hanlon, 36 N.Y.2d 549, 559, 369 N.Y.S.2d 677, 330 N.E.2d 631), if a warrant has been issued, it will be presumed valid and the burden of proving otherwise will fall upon the challenger (cf. People v. DiStefano, 38 N.Y.2d 640, 652, 382 N.Y.S.2d 5, 345 N.E.2d 548). The issuing judge has considerable discretion in determining the sufficiency of a wiretap application and, "review of the validity of the warrant, the court should determine whether a minimal showing was lacking so that the Judge abused his discretion in issuing it" (People v. Romney, 77 A.D.2d 482, 484, 433 N.Y.S.2d 941).

Here, there was no abuse of discretion. We agree with the suppression court that "engaging in an exacting dissection of each of the * * * affidavits suffice it to say that while each singular allegation of fact would be insufficient, standing alone, to establish the probable cause required by CPL 700.15 ( 1-5), when each such allegation is considered in conjunction with the others, the aggregate result satisfies the criteria of the * * * statute".

Among these allegations of fact were that defendant had been seen by a confidential informant selling what appeared to be cocaine in May, 1982. The identity of this eyewitness and sufficient information to assess his reliability were revealed to the issuing magistrate at an in camera proceeding.

In addition, investigators physically (not electronically) overheard telephone conversations placed from "Vincent's", a target location of their...