People v. Mark
| Decision Date | 01 June 1979 |
| Citation | 417 N.Y.S.2d 149,68 A.D.2d 315 |
| Parties | PEOPLE of the State of New York, Respondent, v. Keith MARK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Donald R. Alvarez, Niagara Falls, for appellant.
Aldo Di Florio, Dist. Atty., Lockport, for respondent; Shavasp Hanesian, Niagara Falls, of counsel.
Before SIMONS, J. P., and HANCOCK, SCHNEPP, DOERR and MOULE, JJ.
Defendant appeals from a judgment entered March 16, 1978 convicting him upon his plea of guilty to attempted criminal possession of a controlled substance in the sixth degree, a class E felony, under Penal Law, § 220.06. The plea was entered after denial of motions to suppress telephone conversations and other physical evidence.
Early in 1976, in an expanding probe into illegal drug traffic, the District Attorney secured orders from county court authorizing the interception of telephone communications of several persons. Predicated upon those listenings the District Attorney on June 21, 1976 applied for a court order authorizing the tapping of a telephone in Lockport listed in defendant's name. The interception was authorized for 30 days subject to automatic termination when the described communication had been obtained, and in no event beyond July 20, 1976. The underlying affidavit used by the District Attorney in obtaining this order was based upon information and belief, his source being the additional affidavits of two police officers who were members of the Niagara County Drug Task Force. The substance of these affidavits and the events which gave rise to the application will not be detailed here for reasons which will be made clear below. The telephone sought to be tapped as defendant's was listed in the name of Donald J. Cornell although the application and subsequent authorization were in defendant's name. This information is contained in the supporting affidavit of one of the police officers. Cornell is described in such affidavit as an occupant of the apartment with defendant, but the record does not disclose an application or authorization to intercept calls on the telephone of Donald Cornell.
Based upon telephone conversations intercepted pursuant to court order at defendant's residence and other intercepted communications wherein there is no mention of the defendant by name or in any other manner, on July 7, 1976 one of the police officers made application to the county court and secured a search warrant for defendant's apartment, the persons of defendant and others named as well as all vehicles and outbuildings to which they may have immediate access. The warrant was executed on July 9, 1976 and as a result of the search the police seized contraband from the apartment, the garage and a truck in the garage. Defendant and four others were arrested.
After indictment and arraignment defendant timely moved to suppress all evidence seized as a result of the search warrant and further moved against the telephone interception order, seeking all supporting affidavits or documents in connection with the issuance thereof and all logs and records with respect to such eavesdropping. Defendant claims that the telephone communication intercept and the search warrant were obtained without probable cause and further asserts that prior to the court order authorizing the tap of the telephone at his apartment, a communication was intercepted in violation of Penal Law, § 250.05. It is not necessary to decide whether or not probable cause existed or whether there was in fact an illegal interception. There was statutory noncompliance of a nature which requires that the judgment of conviction be reversed and the motions to suppress granted.
Defendant was arraigned on November 22, 1976 and the People failed to furnish him with a copy of the eavesdropping warrant and accompanying application which authorized such interception within fifteen days, as required by CPL 700.70. The statute provides that "(t)his fifteen day period may be extended by the trial court upon good cause shown if it finds that the defendant will not be prejudiced by the delay in receiving such papers." On January 6, 1977 the District Attorney moved to be...
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