People v. Rabb
| Decision Date | 18 March 2011 |
| Docket Number | Feb. 15,2011. |
| Parties | The PEOPLE of the State of New York, Respondent,v.Reginald RABB, Appellant.The People of the State of New York, Respondent,v.Steven Mason, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE Office of the Appellate Defender, New York City (Kerry S. Jamieson and Richard M. Greenberg of counsel), for appellant in the first above-entitled action.Center for Appellate Litigation, New York City (Barbara Zolot and Robert S. Dean of counsel), for appellant in the second above-entitled action.Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Alan Gadlin of counsel), for respondent in the first and second above-entitled actions.
Defendants Reginald Rabb and Steven Mason—who ran P & D Construction Workers Coalition, a minority labor coalition 1—challenge the People's March 31, 2005 eavesdropping warrant application on the ground that the People failed to establish that normal investigative measures had been exhausted, were reasonably unlikely to succeed if tried, or were too dangerous to employ ( see CPL 700.15[4]; 700.20[2][d] ). Supreme Court denied defendants' motions to suppress and defendants pleaded guilty. The Appellate Division affirmed the judgments upon their guilty pleas, holding that the People's application adequately explained why normal investigative measures would be reasonably
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unlikely to succeed if tried (66 A.D.3d 487, 887 N.Y.S.2d 42 [2009] ). Because there is record support for that conclusion, we now affirm.
In 2002, the Labor Racketeering Unit of the New York County District Attorney's Office (LRU) began investigating the activities of a minority labor coalition called Akbar's Community Services. Akbar was run by Derrick Walker and his associate Frederick Rasberry, who utilized the coalition to force construction companies, under the threat of vandalism or intimidation, to hire coalition workers and/or pay money for “security” from intimidation from other labor coalitions. During a three-year investigation into Akbar's practices, the LRU's investigatory techniques included, among other things, placing a senior LRU investigator undercover as a construction company owner whereby he paid Rasberry $800 a month for “security” from other coalitions and conducting numerous interviews with construction company personnel about Akbar's practices.
The Akbar investigation uncovered certain coercive techniques engaged in by P & D. During one interview with a construction company president in May 2004, an LRU investigator inquired as to whether he had been contacted by Walker or Rasberry. He responded that he had not, but that he had been contacted by P & D. He produced a business card listing the name “Divine” 2 and a cellular phone number. Upon analyzing the billing records for Walker's and Rasberry's cell phones, investigators learned that the “Divine” cell phone number was registered to one Carol Rabb. LRU cross-referenced the number with a minority labor coalition list and discovered that the contact person for P & D went by the name of “Divine Organizer.” Moreover, according to billing records, between January and July 2004, over 70 calls were made between the “Divine” number and the numbers belonging to Walker and Rasberry.
On January 19, 2005, with the support of an affidavit from a senior LRU investigator, the People obtained eavesdropping warrants against the Akbar targets, Walker and Rasberry.3 Shortly after an extension of the Walker/Rasberry warrant was obtained on February 1, 2005, a representative of another construction company advised an LRU investigator that she had been approached by a P & D “business agent” who demanded that she put workers from the community on the job site, and left her his business card, which had the name “CEO Divine Allah” typed on the card and the same cellular phone number given to the other contractor.
After obtaining a second extension against Walker and Rasberry on March 1, 2005, the People obtained an eavesdropping warrant against Rabb on March 31, 2005, setting forth the same goals that they had relative to the Walker/Rasberry investigation: to determine the full scope of Rabb's leadership position in P & D and gather sufficient evidence to prosecute the
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participants in that illegal conduct. The People later obtained an eavesdropping warrant against Mason's cell phone on November 9, 2005 in furtherance of the same goals.
Defendants were indicted by the New York County grand jury for, among other crimes, enterprise corruption and grand larceny in the second degree. They moved pursuant to CPL 710.20 to suppress evidence obtained from the eavesdropping warrants, claiming that the March 31, 2005 application for the eavesdropping warrant for Rabb's cell phone the only application that defendants challenge on this appeal 4 did not meet the dictates of CPL 700.15(4). After Supreme Court denied defendants' respective motions, Rabb pleaded guilty to enterprise corruption, grand larceny in the second degree (two counts), attempted grand larceny in the second degree and criminal possession of a weapon in the fourth degree, and was sentenced as a second felony offender to an aggregate term of 8 1/2 to 17 years' imprisonment. Mason pleaded guilty to the same crimes—save for the criminal possession of a weapon charge—and was sentenced as a second felony offender to an aggregate term of 7 1/2 to 15 years' imprisonment. Each defendant appealed the judgment upon his guilty plea to obtain review of the denial of his suppression motion.
The Appellate Division affirmed (66 A.D.3d 487, 887 N.Y.S.2d 42 [2009] ) and a Judge of this Court granted defendants leave to appeal ( People v. Mason, 13 N.Y.3d 940, 895 N.Y.S.2d 331, 922 N.E.2d 920 [2010], 14 N.Y.3d 759, 898 N.Y.S.2d 88, 925 N.E.2d 91 [2010]; People v. Rabb, 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921 [2010] ).
Criminal Procedure Law § 700.15(4) provides that an eavesdropping warrant may issue only “[u]pon a showing that normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous to employ.”
In addition, an application for an eavesdropping warrant must contain “[a] full and complete statement of facts” establishing that one of the requirements of section 700.15(4) has been met (CPL 700.20[2][d] ). It is not coincidental that the language of the aforementioned CPL provisions is substantively identical to federal standards set forth in 18 USC § 2518(3)(c) and (1)(c), respectively, since it was the Legislature's intention to “conform ‘State standards for court-authorized eavesdropping warrants with federal standards' ” ( People v. McGrath, 46 N.Y.2d 12, 26, 412 N.Y.S.2d 801, 385 N.E.2d 541 [1978], cert. denied 440 U.S. 972, 99 S.Ct. 1535, 59 L.Ed.2d 788 [1979], quoting Governor's Approval Mem., Bill Jacket, L. 1969, ch. 1147, 1969 N.Y. Legis. Ann., at 586; see United States v. Lilla, 699 F.2d 99, 102 [2d Cir.1983] ). These statutory requirements ensure that wiretaps are not routinely employed as an initial step in a criminal investigation and are used only after the applicant states, and the court finds, that the dictates of sections 700.15(4) and 700.20(2)(d) have been met ( see generally United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 40 L.Ed.2d 341 [1974] [] ).
The Legislature sought, through its enactment of CPL article 700, to balance
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competing policies, namely, the protection of “[t]he right of privacy, to which unsupervised eavesdropping poses a great threat ... against society's interest in protecting itself against crime” (Report of New York State Joint Legislative Committee On Crime, Its Causes, Control & Effect on Society, 1968 N.Y. Legis. Doc. No. 81, at 44). Significantly, the Legislature took special note of the importance of eavesdropping as it related to organized crime, observing that, “[d]ue to the tight structure of organized crime groups, their use of brutal force to discourage informants, and the high degree to which key members have insulated themselves from criminal liability, standard law enforcement techniques generally result in the conviction of only lower echelon rank and file members” of those groups ( id.). Then–Governor Rockefeller likewise acknowledged that the eavesdropping law would afford law enforcement “greater flexibility in the employment of eavesdropping as an effective weapon against crime” and, in particular, organized crime, “ where the obtaining of evidence for successful prosecutions is often extremely difficult” (Governor's Approval Mem., Bill Jacket, L. 1969, ch. 1147, 1969 N.Y. Legis. Ann., at 586). With those objectives in mind, we now address the merits of defendants' arguments.
Defendants do not challenge Supreme Court's conclusion that the eavesdropping warrant was issued based upon probable cause; it is evident from this record that the People established probable cause to believe that defendants were committing designated criminal offenses and that communications concerning those offenses would be obtained through eavesdropping ( see CPL 700.15[2], [3] ). Rather, defendants assert, in essence, that the People improperly utilized eavesdropping as a first step in the Rabb/Mason investigation and failed to provide a particularized showing that normal investigative procedures were unlikely to succeed, relying instead on conclusory statements concerning their experience in the Walker/Rasberry investigation. Defendants further claim that the successful use of physical surveillance, undercover operations, witness interviews and search warrants in the Walker/Rasberry investigation demonstrated that the warrant application here failed to establish...
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