People v. Meticheccia
| Decision Date | 18 July 1975 |
| Citation | 83 Misc.2d 241,371 N.Y.S.2d 805 |
| Parties | PEOPLE of the State of New York v. Anthony J. METICHECCIA et al., Defendants. |
| Court | New York City Court |
On October 7, 1974, information was received from a reliable informant by Detective Nicholas Pappas of the Mount Vernon Police Department that the defendants Ralph A. Mauro and Anthony J. Meticheccia were involved in an elaborate confidence game.
According to the informant, Mauro and Meticheccia would telephone an individual for the purpose of determining if he would be interested in buying a TV set at a bargain price.
As soon as the prospective buyer (the mark) would express interest, he would be instructed to go to the rear of a local Korvette store where he would be met by a person who would give him further instructions.
At the appropriate time, the unwary buyer would meet a man dressed in a Korvette uniform who would ask for the money. Upon receiving same, he would direct the buyer to drive his car to a waiting platform where the TV set would be delivered to him.
While the buyer was on the way to the loading platform, the individual dressed in the Korvette uniform would depart, leaving the buyer parked at the loading platform waiting for a delivery which would never take place.
The informant revealed that he had previously participated with Mauro and Meticheccia in the scheme and that his confederate had played the same confidence game on numerous other occasions with other pick-up men and that they had boasted to him that the victims never complained to the authorities after the 'sting'.
Armed with this information and reasonable cause to believe that the crime of grand larceny was being perpetrated by Mauro and Meticheccia, Detective Pappas and other law enforcement agents learned that the base of the operation of the suspected swindle was the second floor at 144 Stevens Avenue, Mount Vernon, New York.
Because crimes were involved warranting a Grand Jury investigation, the District Attorney of Westchester County issued an ex parte subpoena and served same upon the New York Telephone Company.
As a result of this subpoena it was learned that telephone number 914--699--4612 was listed in the records of the telephone company to the defendant Ralph A. Mauro at 144 Stevens Avenue, Mount Vernon, New York.
The record before this Court does not indicate who actually installed the same but the District Attorney has conceded that a 'pen register' device was installed without prior judicial approval.
The results of the use of the 'pen register' enabled the investigators to get the telephone numbers of all outgoing calls made from Mauro's telephone and eventually identify and locate recipients of those calls.
A 'pen register' is a device which is attached to a telephone line and which, by the use of dashes corresponding to the numbers dialed, records on a tape the telephone number called. A 'pen register' does not record or monitor any conversation nor can it reveal whether the dialed number responded to the phone.
In addition to supplying the investigators with the information that a telephone was listed to the defendant Mauro, the utility also gave the investigators the pole location of his phone.
No judicial approval was sought by the District Attorney prior to the issuance by him of the ex parte subpoena nor the installation of the 'pen register', nor did not District Attorney mention the subpoena or the 'pen register' when he applied to County Judge Richard Daronco for a wiretap order on October 30, 1974.
There is no question and I find that as a direct result of the use of the ex parte subpoena and 'pen register' the investigato were able to gather evidence against the defendants Mauro, Meticheccia and Manzo, enabling them to confirm the modus operandi of the defendants.
Application was then made to County Judge Daronco for a wiretap order, with no reference to the ex parte subpoena or 'pen register'. On October 30, 1974 the County Judge signed an order authorizing the District Attorney to intercept, listen to and make copies of all telephone conversations bearing the number 914-699-4612 listed to Ralph Mauro.
On November 7, 1974, as a result of information received over Mauro's tapped telephone, a combined operation was staged by the Mount Vernon Police Department and the Westchester County Sheriff's Department.
Officers of the Mount Vernon Police Department including Detective John DeMascio went to the second floor room at 144 Stevens Avenue, Mount Vernon, New York to effect the arrest of the defendants Meticheccia and Tisher after learning that defendant John Manzo had fled from the stake-out scene at Cross County Shopping Center and allegedly had kidnapped a female undercover officer.
While seated at a small night table in the room occupied by Meticheccia and Tisher and after they had been placed under arrest on a charge of Grand Larceny, Detective DeMascio called in to police headquarters, using the telephone instrument which was on the table.
Next to the instrument was an orange colored notebook open to plain view. This notebook was seized as evidence by Detective DeMascio after he observed names and numbers on the open page which he remembered hearing during the wiretap operations.
The defendants have moved to suppress the orange colored notebook on the ground that the police had no search warrant and on the further ground that a notebook is not contraband per se.
This phase of the suppression motion is denied.
When the police entered the room they were armed with information they had received as a result of the wiretap order issued by Judge Daronco as well as from Detective Pappas. They also had been advised that during the Cross County Shopping Center encounter one of the four defendants had taken a female undercover cop as a hostage. Consequently, they had probable cause to enter the premises without an arrest warrant and to arrest defendants Meticheccia and Tisher without a warrant (Section 140.10 CPL) and to seize the orange colored notebook.
The police officers were validly present in a constitutionally protected area for the legitimate purpose of effecting a lawful arrest. They did not go to the defendants' apartment looking for contraband but came upon it inadvertently. Under these circumstances the seizure was legal. (See People v. Neulist, 72 Misc.2d 140, 338 N.Y.S.2d 794).
The defendants have also moved to suppress all of the evidence obtained by the People as a result of the use by the District Attorney, without prior judicial approval, of an ex parte subpoena.
I find as a matter of law that the District Attorney had the power to issue the ex parte subpoena inasmuch as he was, within the meaning of Section 610.20(2), conducting a criminal investigation.
The definition of 'criminal proceeding' contained in Section 1.20(18) of the Criminal...
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State v. Brown
...v. State, 256 Ga. 751, 353 S.E.2d 19 (1987) (pen register covered by electronic surveillance statute); People v. Meticheccia, 83 Misc.2d 241, 371 N.Y.S.2d 805 (N.Y.City Ct.1975), reversed on other grounds, 91 Misc.2d 129, 397 N.Y.S.2d 514 (N.Y.1977) (only those with proprietary interest in ......