People v. Nicoletti

• Decision Date: 05 June 1974
• Citation: 356 N.Y.S.2d 855,34 N.Y.2d 249,313 N.E.2d 336
• Parties: , 313 N.E.2d 336 The PEOPLE of the State of New York, Respondent, v. Benjamin NICOLETTI, also known as 'Sonny' Nicoletti et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 855

356 N.Y.S.2d 855

34 N.Y.2d 249, 313 N.E.2d 336

The PEOPLE of the State of New York, Respondent, v. Benjamin NICOLETTI, also known as 'Sonny' Nicoletti et al Appellants.

Court of Appeals of New York.

June 5, 1974.

Bernard Sax, Niagara Falls, for Benjamin Nicoletti, appellant.

Victor A. Rippo, Public Defender (Raymond T. Burgasser, North Tonawanda, of counsel), for Ronald Appoloney, appellant.

Aldo L. DiFlorio, Dist. Atty. (Shavasp Hanesian, Niagara Falls, of counsel), for respondent.

JASEN, Judge.

Over objection, recorded telephone conversations intercepted pursuant to an eavesdropping warrant, were introduced into evidence at defendants' joint trial for conspiracy (Penal Law, § 105.00) and promoting gambling (Penal Law, § 225.05). On these appeals from orders of the Appellate Division affirming their convictions, the determinative issue is whether the absence of seals on the recordings was sufficiently explained to justify their admission into evidence.

We reverse and hold, as a matter of law, that the absence of seals was insufficiently explained and that the recordings were improperly admitted into evidence.

The facts may be briefly stated. Police surveillance of the Ivanhoe Inn on Buffalo Avenue in Niagara Falls, New York, revealed that it was frequented by known gamblers. Police informants reported that gambling operations were being conducted there. Based on this information, an eavesdropping warrant was secured to tap a telephone in a room at the inn believed to be used in the gambling operation. Eavesdropping commenced March 12, 1970 and terminated on March 30, 1970. Numerous incriminating conversations were intercepted, the defendants were arrested, and these indictments ensued.

The tape recordings of the intercepted conversations were kept in a locked footlocker in the home of Detective Nafus of the Niagara Falls Police Department until about May 8, 1970, when they were delivered, in the locked footlocker, to the District Attorney at the Niagara County Court House. Aside from Nafus and the District Attorney, one other police officer had the combination to the locker containing the tape recordings. Nafus, along with other officers and the District Attorney, reviewed the tapes at his home. Transcriptions were made and portions of some tapes were re-recorded to produce two composite tape recordings. Duplicates of certain of the tapes were also made. The Justice who issued the eavesdropping warrant apparently was advised of the storage arrangements for the tape recordings by the District Attorney, but they were never presented to him for sealing and none of them were, in fact, ever sealed.

Subdivision 2 of section 822 of the former Code of Criminal Procedure, in effect at the time of the eavesdropping, provided that immediately upon expiration of the warrant, recordings of communications 'shall be made available to the issuing justice and sealed under his directions.' Subdivision 3 of section 825 makes the presence of a seal, or a satisfactory explanation for its absence, a prerequisite for the use or disclosure of the contents of any intercepted communication or evidence derived therefrom. Federal law contains similar provisions (U.S. Code, tit. 18, § 2518, subd. (8), par. (a)), as does the present Criminal Procedure Law (700.50, subd. 2; 700.65, subd. 3).

It is conceded that the tape recordings were not sealed. By way of explanation, the People urge that there was substantial compliance with the law; that the issuing Justice was appraised of the storage arrangements; and that the tapes were needed for transcription and analysis, a task said to be particularly lengthy and arduous in a conspiracy and gambling investigation. It is also urged that a secure storage facility was lacking and that, at any rate, there is no evidence and, for that matter, no allegation, that the tape recordings were altered or doctored in any way.

We cannot accept these arguments in justification. The sealing requirement is to be strictly construed and it is not the defendant's burden to come forward with evidence of tampering when unsealed recordings are sought to be introduced into evidence. The purpose of the requirement is at least threefold: to prevent tampering, alterations or editing; to aid in establishing the chain of custody; and to protect the confidentiality of the tapes. (See United States v. Poeta, 2 Cir., 455 F.2d 117, 122, cert. den. 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337; United States v. Kohne, D.C., 358 F.Supp. 1053, 1058, affd. 3 Cir., 485 F.2d 682; see, also, American Bar Assn., Project on Minimum Standards for Criminal Justice; Standards Relating to Electronic Surveillance, Final Draft (1971), § 2.3, subd. (b); §§ 4.2, 5.13, 5.14 and Commentary.)...