People v. Qike

• Decision Date: 16 September 1999
• Citation: 700 N.Y.S.2d 640
• Parties: 1999 N.Y. Slip Op. 99,538 The PEOPLE of the State of New York, Plaintiff, v. Huang QIKE, Defendant.
• Court: New York Supreme Court

Page 640

700 N.Y.S.2d 640

1999 N.Y. Slip Op. 99,538

The PEOPLE of the State of New York, Plaintiff, v. Huang QIKE, Defendant.

Supreme Court, Kings County, New York.

Sept. 16, 1999.

Charles J. Hynes, District Attorney of Kings County, Michelle Lee Kaminsky of counsel, for plaintiff.

Alter & Barbaro, John Sampson of counsel, for defendant.

JOHN M. LEVENTHAL, J.

Defendant by way of indictment is charged with various crimes, inter alia, Assault in the First Degree and Assault in the Second Degree. ¹ It is alleged that on July 11, 1997 the defendant had thrown boiling hot water at the complainant, Hiu Cheng, with the intention of causing her serious physical injury ².

Defendant came into possession of a tape of a telephone conversation occurring sometime in the spring of 1998 between the complainant and one Derrick Bo Wan. The defendant alerted the Court and the People of the tape's existence at an appropriate juncture in the proceedings and in fact supplied the tape to be copied by the People. The defendant stated his intention to introduce the tape or a translated transcript of the same. ³ The People maintain that the tape is the result of illegal eavesdropping and should be suppressed. (See, CPLR § 4506). ⁴

Since it is alleged that the defendant is the one to have conducted the illegal eavesdropping of complainant's telephone conversation, the Court directed the defendant to show how the tape was received by him. ⁵

FINDINGS OF FACT

The defendant testified on his own behalf. ⁶ The complainant and Detective Investigator Steven Christopher Nieves testified for the People.

Defendant's testimony was as follows:

Defendant has been married to the complainant for eight (8) years. They lived together in a ground floor apartment in a three family home at 190 Bay 23rd Street, in Brooklyn. After the defendant was arrested on the charges herein on July 11, 1997, he never returned to 190 Bay 23rd Street until November 1997 due to the issuance of a protective order. The defendant then was granted visitation of his daughter by the Family Court at his brother's basement apartment also at 190 Bay 23rd Street. The defendant during one of these visits in either February or March, 1998 asked his wife to retrieve some of his belongings and to bring them downstairs to his brother's apartment. The complainant told defendant to come up and to get his own belongings.

The defendant went upstairs to his wife's apartment, took some clothes and removed from a drawer his social security card, a deed to the house, credit cards and four tapes. This was done in the presence of his wife. Two of the tapes were of music and two were micro-cassette tapes from the answering machine. The defendant put the items other than clothing in a plastic bag and brought them down to his brother's basement apartment. The defendant continued to play with his daughter for two hours. He then went home to his apartment in Chinatown.

Sometime thereafter defendant played the two micro-cassette tapes as he wanted to receive his phone messages that may have been delivered to his wife's house. He was particularly concerned about messages relating to immigration and banks. Upon hearing the content of the subject tape, he brought the tape's existence to his lawyer's attention.

Hiu Cheng, the complainant, testified as follows:

She never gave anyone permission or authority to tape the telephone conversation that she had initiated between Derrick Bo Wan and herself, nor did she tape the conversation.

Ms. Cheng lived in the first floor apartment at 190 Bay 23rd Street in Brooklyn. She had shared the apartment with the defendant until July 10, 1997, when the defendant had to vacate the apartment after Ms. Cheng obtained an order or protection. The defendant's brother and cousin lived in the basement apartment and second floor apartment respectively. Ms. Cheng did not change the locks and keys to her apartment until six months after her husband left. The defendant retained the keys to the apartment.

The windows facing the backyard in Ms. Cheng's apartment cannot be locked. The backyard is accessible to the public. Ms Cheng indicated that sometimes items in her apartment were not in the same place upon her return to her apartment as when she had left.

Ms. Cheng did give the defendant permission to enter her apartment to remove clothing and papers during the period of the order of protection. ⁷ On that one occasion, the defendant did enter her bedroom but the complainant did not see what items the defendant had removed.

Ms. Cheng had one answering machine. Complainant's younger sister had purchased an answering machine for her own use. In 1998, complainant's sister gave complainant the answering machine and set it up for her in the apartment at 190 Bay 23rd Street. The machine was located in the living room. Ms. Cheng knew only how to play messages and how to erase them. The complainant did not know how to record messages or how to change the message tape. Ms. Cheng never purchased tapes for and never changed the tape inside the answering machine. Ms. Cheng had no spare micro-cassette tapes in her apartment. The original tape remained in the machine from the time that her sister had first given her the answering machine. Ms. Cheng did not store any messages, but erased them after hearing its contents.

The answering machine containing the message tape was placed in evidence. The Phone Mate machine also contained a Phone Mate brand micro-cassette tape. The tape of the subject conversation produced by the defendant and inspected by the Court was on a TDK micro-cassette.

Detective Investigator Steven Nieves of the Kings County District Attorney's office also testified. D.I. Nieves has been employed in the District Attorney's office for six years, the last four years working in the Wire Room Unit conducting court ordered covert surveillance including hidden cameras and wiretaps. D.I. Nieves had worked on cases involving more that 200 wiretaps and has received special training in this area.

D.I. Nieves had visited the first floor apartment at 190 Bay 23rd Street in Brooklyn days prior to the hearing. He had inspected the telephone pole and lines in the house. There was no tampering with the lines in the house. Nieves concluded that this would not be unusual even if an illegal wiretap had been conducted as he explained that a tap can be installed by attaching a wire purchased at a hardware store to a modular phone block. The recording equipment could be bought at a store such as Radio Shack. Every time the phone is picked up, the recorder will be triggered to record the conversation. If a micro-cassette recording device were to be employed, the equipment would be quite small. To install such a device the modular block would be easily removed with a screwdriver and the "wiretap equipment" attached within a matter of ten minutes. At the subject premises, this could have been done in the complainant's bedroom by moving her bed a few feet away from the wall and then returning the bed to its original position after installation.

It was stipulated between the parties that had Derrick Bo Wan testified, his testimony would be that he did not tape the subject conversation nor did he give anyone permission or authority to tape the same. Additionally it was stipulated that the Phone Mate machine was capable of recording even when as in the instant case the call was made from and not to the premises where the answering machine was located.

The defendant's testimony as to how he obtained the tape is not credible. ⁸ The Court, on the other hand, credits the testimony of the complainant over that of the defendant. Notably, the Phone Mate micro-cassette in the Phone Mate answering machine supports the complainant's testimony that she never changed the tape in the answering machine. The defendant's tape, however, was a different brand than that of the machine. The Court also credits Ms. Cheng's testimony that she never purchased other tapes, nor did she have a spare micro-cassette in her apartment. Additionally, the Court finds that Ms. Cheng did not store any messages. The Court likewise credits the testimony of D.I. Nieves who demonstrated how easily a "wiretap" could have been installed. The Court finds that the defendant obtained the subject tape through eavesdropping, that is, an illegal wiretap. The defendant readily had access to complainant's apartment.

CONCLUSIONS OF LAW

STANDING

CPLR § 4506(1) provides as follows:

The contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law ⁹, may not be received in evidence in any trial, hearing or proceeding before any court or grand jury, or before any legislative committee, department, officer, agency, regulatory body, or other authority of the state, or a political subdivision thereof; provided, however, that such communication, conversation, discussion or evidence, shall be admissible in any civil or criminal trial, hearing or proceeding against a person who has, or is alleged to have, committed such crime of eavesdropping.

The proscriptions of CPLR § 4506 apply not only to civil, but also to criminal trials. (People v. Kirsh, 176 A.D.2d 652, 575 N.Y.S.2d 306; People v. Dunham, 157 Misc.2d 289, 596 N.Y.S.2d 289; CPL 60.10; Alexander, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR § 4506 at 690). The exclusionary provision of CPLR § 4506 "applies not simply to eavesdropping evidence unlawfully obtained by law enforcement officers, but also to such evidence gathered by any individual, and serves to deter both unlawful governmental conduct and that of private individuals." (People v. Capolongo, 85 N.Y.2d 151, 158-159, 623 N.Y.S.2d 778, 647 N.E.2d 1286).

It is evident that Ms. Cheng is an aggrieved person under the statute ¹⁰. (...