People v. Scarnati

• Decision Date: 09 May 1988
• Citation: 140 A.D.2d 469,528 N.Y.S.2d 166
• Parties: The PEOPLE, etc., Respondent, v. Anthony SCARNATI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 166

528 N.Y.S.2d 166

140 A.D.2d 469

The PEOPLE, etc., Respondent, v. Anthony SCARNATI, Appellant.

Supreme Court, Appellate Division Second Department.

May 9, 1988.

Gerald L. Shargel, New York City (Christine E. Yaris, of counsel, Alan Futerfas on the brief), for appellant.

Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and Douglas Noll, of counsel), for respondent.

Before BRACKEN, J.P., and LAWRENCE, KUNZEMAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (Harrington, J.), rendered April 22, 1987, convicting him of criminal usury in the second degree (four counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of those branches of the defendant's omnibus motion which were to dismiss counts three, six and seven of the indictment and to suppress evidence gathered pursuant to an electronic eavesdropping warrant.

ORDERED that the judgment is affirmed, and the case is remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50(5).

The electronic eavesdropping warrant was issued based on probable cause to believe that the defendant was committing the crimes of criminal usury in the first degree (Penal Law § 190.42) and criminal usury in the second degree (Penal Law § 190.40); ( see, People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451; People v. Manuli, 104 A.D.2d 386, 478 N.Y.S.2d 712). While each singular allegation of fact contained in the affidavit would have been insufficient standing alone, in the aggregate probable cause was established ( People v. Manuli, supra, at 387, 478 N.Y.S.2d 712; see, United States v. Shakur, D.N.Y., 560 F.Supp. 337, 345). Additionally, given the initial showing, coupled with the ongoing nature of the defendant's usurious activities, probable cause existed that electronic eavesdropping in the defendant's car and over his home telephone would yield evidence of such offenses (see, CPL 700.15[3]; see, People v. Mazzarello, 116 A.D.2d 808, 497 N.Y.S.2d 156, lv. denied 67 N.Y.2d 886, 501 N.Y.S.2d 1038, 492 N.E.2d 1245).

The absence in the warrant of the statutory directive that interceptions must terminate upon attainment of authorized objectives (CPL 700.30[7] ) was not fatal, as the warrant did direct termination within 30 days during which progress reports were produced before the issuing Justice, and the subsequent extensions each included all statutorily mandated language ( see, People v. Baris, 116 A.D.2d 174, 500 N.Y.S.2d 572, lv. denied 67 N.Y.2d 1050, 504 N.Y.S.2d 1025, 495 N.E.2d 358; People v. Palozzi, 44 A.D.2d 224, 353 N.Y.S.2d 987). While we are mindful that electronic eavesdropping warrants and the concomitant intrusion into one's privacy are generally strictly construed ( see, e.g., People v. Washington, 46 N.Y.2d 116, 412 N.Y.S.2d 854, 385 N.E.2d 593), the instant omission caused the defendant to suffer no prejudice whatsoever and as such was de minimis ( see, People v. Solomon, 74 Misc.2d 926, 346 N.Y.S.2d 938).

Finally, by specifically requesting the lesser included charge of criminal usury in the second degree, the defendant waived geographical jurisdictional objections (see, CPL 20.40) to this prosecution in the County Court, Nassau County. Under the indictment, the defendant was charged with criminal usury in the first degree (Penal Law § 190.42) for crimes occurring in both Nassau and Queens Counties. His subsequent request for jury consideration of the lesser included offense of criminal usury in the second...