People v. Salzarulo

• Decision Date: 30 January 1996
• Citation: 639 N.Y.S.2d 885,168 Misc.2d 408
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Peter SALZARULO et al., Defendants.
• Court: New York Supreme Court

Page 885

639 N.Y.S.2d 885

168 Misc.2d 408

The PEOPLE of the State of New York, Plaintiff, v. Peter SALZARULO et al., Defendants.

Supreme Court, New York County.

Jan. 30, 1996.

Robert M. Morgenthau, District Attorney of New York County, New York City, (David I. Futter of counsel), for plaintiff.

Henry Putzel, III, New York City, for Peter Salzarulo, defendant.

Paul A. Victor, New York City, for Melvin Goldsmith, defendant.

Roger L. Stavis, New York City, for Peter Bishop, defendant.

Mark S. Arisohn, New York City, for Allan Rothman, defendant.

Rubenstein & Corozzo, New York City (Joseph Corozzo of counsel), for Frank Martello and another, defendants.

John L. Buonora, Commack, for Michael Eustace, defendant.

Francis G. GaNun, Forest Hills, for Denis Noonan, defendant.

Goldstein, Weinstein & Fuld, Bronx (Barry Weinstein of counsel), for John Daly, defendant.

Stratis Scarlatos, defendant pro se.

BERNARD J. FRIED, Justice.

Defendants, all officers of Plumber's Local Union No. 2 [Local 2], who are charged in a 183 count indictment with enterprise corruption (Penal Law § 460.20) and related crimes, move to suppress evidence obtained through court authorized electronic eavesdropping.

In November 1990, after the investigation into alleged labor racketeering and other illegal conduct involving the plumbing industry had been underway for some time, the District Attorney applied for, and obtained, an order authorizing the installation of pen registers on three public telephones located at the Pelham Bay Diner in the Bronx. As required under CPL § 705.10, there was the requisite showing of "reasonable suspicion" to authorize the use of a pen register in order to identify the telephone numbers dialed. This authorization was further extended in January 1991, and ultimately the District Attorney requested, and obtained, an eavesdropping warrant on the same telephones in February 1991, which was extended seven times through October 1991.

During the electronic surveillance at the Pelham Bay Diner, in July 1991, an order was obtained authorizing the installation of a pen register on the residential telephones of defendants Frank Martello, Peter Bishop and Melvin Goldsmith. In September 1991, eavesdropping warrants were obtained concerning these residential telephones. This electronic surveillance was extended, by court orders issued in October and November and amended in October to include Paul Martello. In January 1992, eavesdropping was discontinued on the telephones of Paul Martello and Peter Bishop, although the pen register orders were continued; the other eavesdropping warrants were also extended. In February 1992, a further warrant extension was obtained, limited to Frank Martello's telephone, although the other pen registers were continued. In April 1992 an eavesdropping warrant was obtained for Melvin Goldsmith's residential telephone. This warrant was extended in May 1992. A separate pen register order was issued in November 1991 relating to Peter Salzarulo's home telephone; as was one authorizing a pen register to be installed on the business telephone of "B.H. Motto & Co."

Warrants authorizing electronic surveillance or a "bug" in the automobiles of Frank Martello and Peter Bishop were obtained in April 1991. That authorization was amended in May 1991 to include Melvin Goldsmith. These warrants were extended through September 1991. Although the Goldsmith car was dropped from the warrant in July, another such warrant was issued for Goldsmith's car in October 1992 and extended in November 1992. Similar orders, authorizing a "bug" and pen register in the "J & C Hairstyling Boutique", a barbershop in the Bronx, were obtained in April 1992 and extended in May 1992.

Perusal of the various affirmations submitted in support of the electronic surveillance shows references to numbers recorded by the court authorized pen registers installed on the various telephone lines as described above. These affirmations also contain substantial additional information, which is unrelated to the use of the pen registers.

At the time of the installation and use of these pen registers, CPL § 705.10 permitted the judicial authorization of such devices upon a showing of "reasonable suspicion" concerning a statutorily designated crime; probable cause was not required as was necessary for an eavesdropping warrant authorizing wiretapping or the use of a "bug" pursuant to § 700.15. Indeed, § 700.05[1] explicitly excluded a pen register from the definition of "eavesdropping." This all changed with the Court of Appeals February 25, 1993 decision, People v. Bialostok, 80 N.Y.2d 738, 594 N.Y.S.2d 701, 610 N.E.2d 374, which held that a pen register, capable of monitoring conversations, should be treated as an eavesdropping device subject to the warrant requirements specified in the CPL, notwithstanding that the audio function was disabled or that no conversations were actually seized. Although the People do not contend that the pen registers here would not fall under the strictures of Bialostok, that is that they were not capable of acquiring the contents of actual conversations, nevertheless they contend that Bialostok should be applied to its own facts, ¹ or in the alternative, that it should not be retroactively applied.

The threshold issue, then, is the retroactivity of Bialostok: if it is to be applied only prospectively, then the failure to obtain a warrant for the pen registers was not improper and the telephone numbers derived from their use was properly included in the various warrant applications. However, if the Bialostok holding is to be retroactively applied, then the information was improperly included and the warrants would be valid, only if the other evidence supplied established probable cause without the telephone number information.

Interestingly, this issue, which would affect the validity of wiretaps installed prior to Bialostok since many wiretap applications are preceded by a pen register, has not yet reached the Court of Appeals, although the Fourth Department, in People v. La Mendola, 206 A.D.2d 207, 619 N.Y.S.2d 901 [4th Dept.1994], has come down in favor of retroactivity. However, I am not bound by Appellate Division decisions, other than those of the First Judicial Department. (See People v. Waterman, 122 Misc.2d 489, 495, n. 2, 471 N.Y.S.2d 968 [Crim.Ct.N.Y.County 1984] [Lang, J.]; but see Stewart v. Volkswagen of America, Inc., 181 A.D.2d 4, 7, 584 N.Y.S.2d 886 [2d Dept.1992] and Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 664-65, 476 N.Y.S.2d 918 [2d Dept.1984]. Rather, other Departments "are entitled to have their rulings accorded great respect and weight but adhering to those rulings is not mandatory" (People v. Waterman, supra ), and, since I disagree with La Mendola, for the reasons set forth below, I decline to follow its holding.

Before turning to the analysis of this issue, mention should be made of two other cases: People v. Gilpin, 190 A.D.2d 585, 593 N.Y.S.2d 989 [1st Dept.1993] (Gilpin I), 216 A.D.2d 62, 627 N.Y.S.2d 678 [1st Dept.1995] (Gilpin II), and People v. Giordano, 211 A.D.2d 814, 622 N.Y.S.2d 89 [2d Dept.1995], which deal with appeals from convictions predating Bialostok.

In Gilpin I, supra, decided seven days before Bialostok was handed down by the Court of Appeals, the First Department remanded the matter to the trial court for "a hearing to determine whether a modified pen register was used to conduct illegal electronic eavesdropping and, if so, whether any subsequently seized evidence was tainted by the use of such device." (Supra, at 585, 593 N.Y.S.2d 989.) At the commencement of the remanded hearing, Bialostok was brought to the attention of the trial justice in the Supreme Court and its applicability was urged. However, the trial justice stated "I don't consider Bialostok [sic] relevant to these proceedings in the totality of the picture here." Following the hearing, the judge found that the pen register was "convertible into a listening device by either a minor alteration or by adding a speaker or recording device.... [But] [n]otwithstanding the potential for conversion, there was no illegal electronic eavesdropping.... [And] assuming there had been a conversion and subsequent eavesdropping through the pen register, there is, nonetheless, sufficient independent, legally obtained evidence to support the issuance of the wire tap order." Clearly, and a review of the trial court's proceedings confirms this, the judge did not consider the Bialostok issue, i.e., whether, after suppressing the telephone numbers obtained from the pen register, there was independent evidence to support subsequently obtained eavesdropping warrants. Rather what the trial judge decided was that there "was no illegal eavesdropping," which, when read together with the trial judge's statement that Bialostok was outside the scope of remanded proceedings, means that this was a determination that there was no aural evidence illegally obtained by the use of the pen register, not whether there was sufficient probable cause without consideration of the phone numbers dialed by the subject telephone.

Thereafter, in the Gilpin II memorandum decision, the Appellate Division affirmed the conviction and stated that "[b]ecause the pen register at issue had the capacity to be modified to overhear conversations, and was installed without prior judicial authorization by warrant, all evidence obtained from it should have been suppressed." (Gilpin II, 216 A.D.2d at 62, 627 N.Y.S.2d at 679, citing Bialostok ). This memorandum decision further stated "[h]owever, the evidence was sufficient to support the trial court's finding that any error caused by warrantless installation of a pen register which was capable of being modified, but had not been modified, was harmless." (Id.) Inasmuch as the Bialostok issue was not considered at the hearing held pursuant to the remittitur, nor included in the...