People v. McCall

• Decision Date: 24 March 1966
• Citation: 269 N.Y.S.2d 396,17 N.Y.2d 152,216 N.E.2d 570
• Parties: , 216 N.E.2d 570 The PEOPLE of the State of New York, Respondent, v. Burnie McCALL, John Lewis English and Edward Pete Corley, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 396

269 N.Y.S.2d 396

17 N.Y.2d 152, 216 N.E.2d 570

The PEOPLE of the State of New York, Respondent, v. Burnie McCALL, John Lewis English and Edward Pete Corley, Appellants.

Court of Appeals of New York.

March 24, 1966.

Leonard F. Walentynowicz, Buffalo, for Edward Pete Corley, appellant.

Vincent E. Doyle, Jr., Buffalo, for Burnie McCall and John Lewis English, appellants.

Francis R. Moran, Dist. Atty. (Lucien Ali, Syracuse, of counsel), for respondent.

BERGAN, Judge.

On affidavits showing inferences and not facts, the People obtained judicial orders permitting eavesdropping on telephones. All three defendants have been convicted of conspiracy as a felony under section 580--a of the Penal Law, Consol.Laws, c. 40 in its reference to narcotic drugs, based on 55 specified overt acts.

A substantial part of the overt acts which themselves made out the crime of conspiracy consisted of the telephone conversations intercepted pursuant to the court orders. Two of the defendants, McCall and Corley, were also found guilty of possessing a narcotic drug as a felony and the telephone interceptions played an important part in these convictions.

When, on the return of the indictment, it became clear from its allegations that many of the overt acts constituting the crime of conspiracy were acts consisting of telephone conversations, two of the defendants moved in the Onondaga County Court where the indictment was pending to inspect 'any orders for eavesdropping' and the supporting affidavits. Two of the three orders for interception had been made by a Justice of the Supreme Court in Westchester County and one by a Justice in Onondaga County.

The motion for inspection was denied by the County Judge on the ground the orders for eavesdropping are not public records. He indicated that defendants should make their motion on the trial. In the course of trial the People offered the orders in evidence; and for the first time counsel for the defendants were able to examine the orders and the underlying affidavits on which they were based. They objected to their reception and to the reception in evidence of the evidence obtained by eavesdropping.

The trial court declined to pass on the merits of the purported insufficiency of the underlying affidavits on the ground that 'I assume the judge who issued the order was satisfied from the affidavit * * * that the order should be issued, and I don't feel that I can pass upon a discretionary order that was made by another judge, a supreme court judge.'

There is thus brought up on this appeal a significant procedural problem in the New York practice as to where and when a person whose private telephone conversations have been intercepted under judicial sanction can show that the factual basis for an eavesdropping order has been insufficient. Section 813--a of the Code of Criminal Procedure requires that the Justice or Judge who grants the order must be satisfied on oath or affirmation that there is reasonable ground to believe that evidence of crime may be obtained through eavesdropping.

The preferable way is to apply to vacate the order to the Judge who made it. But if the existence of the order or the identity of the Judge is unknown until the trial actually starts, and counsel then for the first time are able to examine the underlying affidavits, it is either too late or impracticable to apply for relief to the Judge who granted the order. In this case the office of the Judge who signed two of the orders was nearly 300 miles away from the place where the trial was going on.

A person whose private telephone communication has been cut into by warrant of public authority and who is prosecuted criminally on the basis of what is disclosed, at some stage of the prosecution when relief will be effective, ought to have access to the ear of a Judge who can do something about it, if the order has been allowed on an insufficient ground.

There is, of course, a normal reluctance in one Judge to overrule another. The problem here is very similar to that raised by motion in County Court to vacate the search warrant which had been issued by a Supreme Court Justice in People v. Politano, 13 N.Y.2d 852, 242 N.Y.S.2d 491, 192 N.E.2d 271.

The County Judge there felt that it would be 'presumptuous' of him to hear such a motion (see 17 A.D.2d 503, 509, 235 N.Y.S.2d 712, 717, 718). But on appeal, the judgment of conviction was itself reversed because the affidavit on which the search warrant had been based failed to show facts which would justify its issuance (17 A.D.2d p. 505, 235 N.Y.S.2d pp. 713, 714). Thus, as a matter of procedural necessity the Trial Judge may have to rule on the question.

The public policy which on one hand ought to protect the preprosecution secrecy of a well-grounded order for eavesdropping, and on the other afford a citizen effective means to test out an insufficiently grounded order, is possessed of some inherent perplexities. The search of a house is known at once, but eavesdropping may not become apparent until a trial is actually under way.

For one thing, an order for eavesdropping made by a judicial officer with power to make it is not usually to be regarded as such an 'unlawful' act of eavesdropping as to come literally within section 813--c of the Code of Criminal Procedure, dealing with unlawful searches and seizures. Thus some other form of relief ought to be made available.

The Appellate Division in People v. Cohen, 24 A.D.2d 900, 264 N.Y.S.2d 886 seems to have accepted the procedural validity of an application made to one Judge to suppress eavesdropping evidence obtained under an order granted by another Judge on the ground of the insufficiency of the papers on which the order was made (42 Misc.2d 403, 248 N.Y.S.2d 339; cf. 41 Misc.2d 158, 245 N.Y.S.2d 429), although on the merits the Appellate Division modified on finding the papers sufficient. A similar procedural route was followed in People v. Gold, 46 Misc.2d 495, 259 N.Y.S.2d 867 where the evidence was suppressed on finding the affidavit underlying the order granted by another Judge to be insufficient.

This court dealt with one aspect of the procedural problem in Siegel v. People, 16 N.Y.2d 330, 266 N.Y.S.2d 386, 213 N.E.2d 682 when, by vacating its prior order allowing an appeal, it declined to interfere with the affirmative exercise of jurisdiction by the Appellate Division (21 A.D.2d 755, 251 N.Y.S.2d 910) to inquire broadly into eavesdropping whether pursuant to judicial order or otherwise, on application of a person claiming to be aggrieved but not the subject of criminal prosecution. And, of course, the procedural path in dealing with searches and seizures under search warrants insufficiently grounded is rather clearly laid out (People v. Fino, 14 N.Y.2d 160, 250 N.Y.S.2d 47, 199 N.E.2d 151; People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644).

By procedural analogy, then, if an accused is unaware of the eavesdropping order or insufficiently advised about it before trial, he may move to suppress or raise appropriate objection on the trial and the question is saved for review on appeal from the judgment.

It is open to some doubt whether the statutory remedy afforded by section 813--c of the Code of Criminal Procedure, dealing with 'unlawful' searches and seizures, should apply to eavesdropping under the aegis of an order of a Judge who has power to make it. The section seems to have no literal application.

'Suppression' is not a fully effective way to deal with testimony which will come in narrative form. This may require rulings of evidentiary exclusion. The normal way to proceed in the situation presented by this record would be to decline to receive the evidence obtained by eavesdropping. (Cf. CPLR 4506.)

The People on this appeal do not undertake to justify the sufficiency of the affidavits supporting the orders but merely rest upon the argument that under People v. Dinan, 11 N.Y.2d 350, 229 N.Y.S.2d 406, 183 N.E.2d 689 there is no constitutional infirmity in judicially approved eavesdropping as such; but this, of course, is not an answer to the specific issue raised on the appeal.

The affidavits on which the telephone interception orders in the case before us were based are quite barren of any tangible thing on which the Judge exercising a discretion could act. Two of them merely state the conclusion of the District Attorney that 'Information received from persons of known reliability' reveals that a described telephone is being used by persons for illicit traffic in narcotic drugs. What was 'revealed' is not stated either as a fact or even in substance.

And although the name of the 'person of known reliability' need not necessarily be disclosed, some factual statement of the affiant's experience with his reliability and some factual showing of what he 'revealed' are basic requirements. In People v. Marshall, 13 N.Y.2d 28, 241 N.Y.S.2d 417, 191 N.E.2d 798 it was noted on the authority of People v. Coffey, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263 and other similar decisions that the informer's 'information was tested by independent observations' (p. 34, 241 N.Y.S.2d p. 421, 191 N.E.2d p. 801). Here the 'informer' is referred to nominally, and that is all except to add the obscure descriptive term 'of known reliability'.

What the District Attorney is saying in his affidavits is that some indefinite person had 'revealed' some conclusion in an undisclosed form to another equally indefinite person. This tells the Judge nothing of the facts and is not enough to meet the minimum requirements of the eavesdropping statute.

The record demonstrates that the District Attorney did not appear personally before the Justice in Westchester on either application. The affidavits and proposed orders were mailed by one police officer in Oneida to another in New York City and by him presented in Westchester.

Thus the Justice had no opportunity, as section 813--a...