People v. Romney
| Decision Date | 12 December 1980 |
| Citation | 77 A.D.2d 468,433 N.Y.S.2d 941 |
| Parties | PEOPLE of the State of New York, Appellant, v. John Winston ROMNEY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Lawrence T. Kurlander, Rochester, (Stephen Brent, Rochester, of counsel), for appellant.
DiPasquale & Speranza, Rochester, (Donn DiPasquale, Rochester, of counsel), for respondent.
Before DILLON, P. J., and CARDAMONE, SIMONS, DOERR and WITNER, JJ.
The principal question presented on this appeal is whether a wiretap warrant was supported by a sufficient showing that the police exhausted normal police procedures as required by statute (CPL 700.15, subd. 4; 700.20, subd. 2(b)) to obtain the information which they properly sought in their investigation of drug traffic on the part of defendant and his associated drug dealers. We conclude that it was and that in any event on the facts of this case another judge of the same court which issued the warrant had no proper basis upon which to declare the warrant insufficient.
In July 1978 Officer Morris of the police narcotic squad, which had been cooperating with the District Attorney in the investigation of drug possession and sales in the City of Rochester, learned from an informant that defendant was selling cocaine and heroin. In order to establish the informant's credibility, Officer Morris, with the informant's consent, listened in on at least four telephone conversations between the informant and defendant in which the purchase of cocaine and heroin was arranged. On August 9 and on August 16, 1978 Officer Morris supplied the informant with money to buy drugs from defendant. On each occasion the informant was searched before and after the "buy", and was found to have bought cocaine the first time and heroin the second time. The informant was not equipped with an electronic device which would record the conversations during the transactions. In his affidavit in support of the application for an eavesdropping warrant authorizing the wiretap of the telephone at the residence from which defendant was "operating", Officer Morris stated that defendant was wily and extremely cautious, and that he would not conclude a transaction at the residence, but would designate a stated street location where he would shortly meet the informant, alone, to make the sale. Because the police were also seeking to learn the identity of defendant's associated drug dealers, and because they concluded that defendant's wily techniques made it virtually impossible to make an effective surveillance of him and get the necessary information without a wiretap on the telephone at the residence from which he was operating, the District Attorney applied for a warrant to make such a wiretap, and he supported it by the affidavits of Officers Morris and Monk. The above facts were set forth, and Officer Morris averred that in his experience further surveillance of defendant without a wiretap would be fruitless and would only alert defendant and his associates of the existence of the investigation. A county judge found the application to be sufficient and issued the warrant; and it was executed.
The results of the wiretap are not contained in the record, but it does not appear that sufficient information to incriminate anyone besides defendant was obtained. Defendant was indicted for possession of a controlled substance and possession of three guns.
On defendant's omnibus motion in County Court against the indictment, he moved for suppression of the wiretap evidence on several grounds. The motion was denied except that the judge gave defendant the opportunity to be heard later on the question of police exhaustion of normal police procedures in their investigation before applying for the eavesdropping warrant. Later, without receiving further evidence concerning the extent of the prior police efforts in their investigation, the motion judge held that the application failed to comply with the exhaustion requirements of the statute (CPLR 700.15, subd. 4; 700.20, subd. 2(b)), and he ordered the wiretap evidence suppressed.
Because the wiretap evidence...
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