People v. Saperstein

• Court: New York Court of Appeals
• Writing for the Court: DESMOND; CONWAY
• Citation: 2 N.Y.2d 210,159 N.Y.S.2d 160,140 N.E.2d 252
• Decision Date: 10 January 1957
• Parties: , 140 N.E.2d 252 The PEOPLE of the State of New York, Respondent, v. Louis B. SAPERSTEIN, Appellant.

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159 N.Y.S.2d 160 2 N.Y.2d 210, 140 N.E.2d 252 The PEOPLE of the State of New York, Respondent,
v.
Louis B. SAPERSTEIN, Appellant. Court of Appeals of New York. Jan. 10, 1957.

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[140 N.E.2d 253] [2 N.Y.2d 211] Irwin N. Wilpon, Brooklyn, and Burton B. Turkus, New York City, for appellant.

[2 N.Y.2d 213] Frank S. Hogan, Dist. Atty., New York City (Albert P. Loening, Jr., and Richard G. Denzer, New York City, of counsel), for respondent.

DESMOND, Judge.

Defendant's conviction was for five crimes of criminal contempt, Penal Law, Consol.Laws, c. 40, § 600. The jury's verdict of guilt amounted to findings that defendant, on his appearances as a witness under subpoena before a New York County Grand Jury on March 11 and 15, 1954, had been five times guilty of contumacious refusals to answer legal and proper questions in that he failed and refused to state definitely who were the participants in five telephone conversations which had been wire-tapped and the recordings of which were read to defendant before the Grand Jury. On this trial for the alleged contempts it [2 N.Y.2d 214] was proven

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that in each of those wire-tapped telephone conversations, defendant himself had been one of the speakers, that in each instance [140 N.E.2d 254] the other speaker and the latter's voice were well known to defendant and that each such conversation had to do with business dealings of defendant highly important to him and long continued and elaborate. It is thus clear without further demonstration that the jury was justified in saying that defendant's failures or refusals to answer those questions and his evasiveness when he did answer amounted to criminal contempts as charged in the indictment. It is not disputed that the Grand Jury testimony thus sought to be gotten from defendant would have been material and pertinent to the Grand Jury's inquiry into alleged violations, in which defendant, an insurance broker, and others were said to be involved, of sections 5 and 113 of the Insurance Law, Consol.Laws, c. 28, and sections 380 and 580 of the Penal Law.

We turn to the errors which defendant says were committed on the trial and which he urges as grounds for reversal. All the telephone talks above referred to had been intercepted by wire tappings authorized by court orders made pursuant to section 813-a of the New York Code of Criminal Procedure and all the conversations had been recorded. It is settled that such recordings are admissible in evidence in the courts of New York State. Harlem Check Cashing Corp. v. Bell, 296 N.Y. 15, 68 N.E.2d 854. The Harlem case holding was that New York State's method of permitting the tapping of wires and the admission into evidence of the recordings thereof is not a violation of section 605 of the Federal Communications Act, U.S.Code, tit. 47, § 605, 47 U.S.C.A. § 605, which says that: 'no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person * * * and no person having received such intercepted communication or having become acquainted with the contents, substance, purport, effect or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto'. See, as to criminality, U.S.Code, tit. 47, § 501, 47 U.S.C.A. § 501. In 1952, six years after out Harlem decision, the United States Supreme Court came to the same conclusion in [2 N.Y.2d 215] Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, with a flat holding that section 605 does not operate to invalidate a State statute, such as our section 813-a of the Code of Criminal Procedure, supra, authorizing the tapping of wires and the receipt in evidence of the records thereof. Despite Harlem and Schwartz, supra, defendant argues here that section

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813-a is violative of the Federal Constitution and of the Federal Communications Act, that the questions which defendant failed to answer were such as would if answered cause him to commit a Federal crime and so could not properly be the basis for a criminal contempt charge, and, finally, that compulsion by subpoena or contempt proceedings to divulge contents of intercepted telephone conversations deprived defendant of his rights under the Federal Constitution and the Federal Communications Act. Our answers to these assertions can be brief.

The general constitutionality of section 813-a of the Code of Criminal Procedure, supra, has long been settled. Harlem Check Cashing Corp. v. Bell, supra; Black v. Impellitteri, 201 Misc. 371, 111 N.Y.S.2d 402, affirmed 281 App.Div. 671, 117 N.Y.S.2d 686, appeal dismissed for want of a substantial constitutional question 305 N.Y. 724, 112 N.E.2d 845; People v. Feld, 305 N.Y. 322, 330, 113 N.E.2d 440, 443. The Harlem and Schwartz cases cited in the nest above paragraph of this opinion show that no Federal statute prevents the divulging, in New York [140 N.E.2d 255] courts as evidence, of intercepted telephone conversations. It is clear, too, that this rule of evidence is not affected by the circumstance that requiring a witness to testify as to...