People v. Scharfstein
| Decision Date | 23 February 1967 |
| Citation | 277 N.Y.S.2d 516,52 Misc.2d 976 |
| Parties | The PEOPLE of the State of New York Plaintiff, v. Benjamin SCHARFSTEIN and Harry Gold, Defendants. The PEOPLE of the State of New York, Plaintiff, v. Benjamin SCHARFSTEIN and Eugene Raicus, Defendants. The PEOPLE of the State of New York, Plaintiff, v. Benjamin SCHARFSTEIN, Eugene Raicus and Charles Moiel, Defendants. |
| Court | New York Supreme Court |
Kleinman, Gold & Landsman, Brooklyn, for Benjamin Scharfstein (Eugene Gold, Brooklyn, of counsel).
Peirez & Gallop, Woodside, for Harry Gold (Lawrence Peirez, Woodside, of counsel).
Freeman & Hyman, Jamaica, for Eugene Raicus (Harold Hyman, Jamaica, of counsel).
Herbert J. Miller, Kew Gardens, for Charles Moiel (Bertram Miller, Kew Gardens, of counsel).
The defendant Scharfstein, indicted on a charge of abortion, has moved 'to suppress any evidence the People may have obtained or received by reliance upon or by means' of a wiretap or electronic device 'after the date of the People's having obtained the original wiretap order, or any extensions or renewals thereof, upon which any evidence, physical, written or otherwise was obtained' against him. The defendants Gold and Raicus made similar applications. The defendant Moiel made no motion but was permitted to join in the motions of the other defendants at the consolidated hearing which was ordered on their motions.
The issue posed by the motions is whether the fact that the identity of a witness is learned by means of an illegal wiretap on a defendant's telephone requires suppression of the testimony of that witness even though he was not informed of the wiretap and was not induced to testify by reason thereof. Although diligently researched, I have been unable to find any state or federal
case squarely in point. THE CHARGES CONTAINED IN THE INSTANT
The three indictments involved here were returned on June 18, 1964 and each charged conspiracy to commit and the commission of abortions. Indictment #1086/64 is against defendants Scharfstein and Gold for abortions upon S.M. and A.F.; indictment #1087/64 is against defendants Scharfstein and Raicus for abortions upon C.M. and M.E.; and indictment #1088/64 is against defendants Scharfstein, Raicus and Moiel for abortions upon P.L. and A.M.
At about the time the indictments in these matters were returned, Scharfstein, Gold and Raicus were also indicted, in three indictments, in Kings County for the crime of abortion. In those cases the defendants made a motion 'to suppress the evidence seized from the defendant (Gold) or from his office on 1745 Caton Avenue, in the County of Kings on May 12, 1964, and to suppress any evidence the People may have received via a wiretap or through any electronic eavesdropping, and to suppress any confession or statement given to them by Dr. Gold * * * on or after May 12, 1964.' After a hearing held before me, I granted defendants' motion on May 24, 1965 'to the extent of vacating the original wiretap order, all renewals thereof, and all of the Evidence obtained in Reliance thereon' for the reason that the order permitting the tapping of Gold's telephone was predicated upon an affidavit by a police official which was insufficient as a matter of law (People v. Gold, 46 Misc.2d 495, 259 N.Y.S.2d 867).
Thereafter the instant motions were made and, as has been noted, a hearing was ordered.
The testimony at the hearing established that the identity of the women aborted was learned from the interception by a wiretap on Gold's telephone pursuant to the order which I vacated in Kings County (46 Misc.2d 495, 259 N.Y.S.2d 867, supra) or from leads obtained by a similar interception on Scharfstein's telephone. The order for the wiretap on Scharfstein's telephone was based upon an affidavit of the same nature as that in the Gold case.
Preliminarily, therefore, if the order entered in Kings County vacating the order for the wiretap on Gold's telephone did not also vacate the order which authorized the placing of a wiretap on Scharfstein's telephone, then, for the purposes of this motion, I hold that the basis for the wiretap on Scharfstein's telephone was insufficient as a matter of law and that order therefore is hereby vacated. (See People v. McCall, 17 N.Y.2d 152, 160, 269 N.Y.S.2d 396, 403, 216 N.E.2d 570.)
The precise way in which the identity of the leads to the women aborted were obtained by the police appears from the testimony of Policewoman Merkel, the only witness called at the hearing, and is as follows: As to S.M. (first three counts of indictment #1086/64): On May 19, 1964, she went to S.M.'s home and told S.M. that they had reason to believe that she had had an abortion performed; that she had been followed to Gold's office and they assumed that she had been aborted; that the District Attorney wanted to speak to her in connection with an investigation he was conducting, that she had a subpoena for her, and that they had transportation outside if she wanted to come with them. Asked how she got S.M.'s name, she replied that she got S.M.'s name from the girl who followed Gold and Scharfstein 'that night' and returned with S. M.'s address. The policewoman testified that she had no knowledge whether this observation was a result of a telephone conversation between Scharfstein and Gold setting up an appointment (the transcript of an intercepted telephone communication between Gold and Scharfstein on February 25, 1964, marked defendant's Exhibit B, shows that an appointment to meet at the hospital was made). She also told S.M. that she did not have to go with them on the subpoena; that she could call a lawyer; that if she wanted to go then, they had a car outside for her convenience, otherwise she could come later. S. M. agreed to go at that time and they proceeded to the District Attorney's office where S.M. gave her a statement in writing. She did not state to S.M., in words or substance, 'you better tell us the truth because we know that you had an abortion, the information came over the wiretap', nor did she at any time play back any tapes or show S.M. any transcripts from those tapes.
As to A.F. (last three counts of indictment #1086/64): As a result of information given by fellow officers of what they had heard on a wiretap, the policewoman knew that A.F. was coming to Gold's office in Brooklyn on February 26th, at about 6:00 p.m. Therefore she went to the vicinity of Gold's office on that day and, at 6:55 p.m., she observed two people drive up. She made a note of the license number on the plates, and when the two came out of Gold's office, she and policewoman Johnston followed them to Queens, where A.F. entered a house.
As to C.M. (first three counts of indictment #1087/64): No testimony was adduced at the hearing regarding this alleged abortion. The two transcripts of the intercepted telephone conversations regarding C.M. (defendants' Exhibit H) were of conversations between defendant Scharfstein and C.M. and were apparently after the commission of the alleged abortion.
As to M.E. (last three counts of indictment #1087/64): On April 22, 1964, at about 12:30 p.m., the police maintained a stake-out at the home of M.E. as the result of an intercepted telephone conversation between Scharfstein and Raicus arranging an appointment to be there at that time. Scharfstein and Doctor Raicus were seen to arrive, enter M.E.'s home and remain there for forty-five minutes. On May 19, 1964 M.E. appeared reason to believe that an abortion had been office with her attorney after a forthwith subpoena had been served upon her that morning. Policewoman Merkel told M.E. that she was there with reference to an abortion performed upon her; that she was stationed outside her home when the two men came there; and that the police had reason to believ that an abortion had been performed upon her. She did not tell M.E. that the appointment for the abortion was made on the telephone; she 'just told her that (they) had been following these people for quite a while and that on one occasion (they) had followed them to her house'. She also told M.E. that she would get immunity if she told them the story, and M.E. gave her a statement naming Raicus and Scharfstein as the ones who performed the abortion on her on April 22nd.
As to P.L. (first three counts of indictment #1088/64): As a result of intercepted telephone communications between Scharfstein and Moiel and Scharfstein and P.L.'s sister (Mrs. G.), Policewoman Merkel and another policewoman were staked-out in the vicinity of Mrs. G.'s home on April 15, 1964, at 9 a.m. and saw Scharfstein and Raicus arrive in Scharfstein's car. Scharfstein took a parcel from the trunk of the car and both entered and a few minutes after 10:00 Scharfstein and Raicus came out and departed. She learned P.L.'s name when she and her partner went to Howard Beach shortly prior to May 19th and spoke to Mrs. G. On May 19th she called P.L. on the telephone, told P.L. that they had reason to believe that she could help in an investigation being conducted by the District Attorney's office and asked her to come to that office in connection with that investigation, but she did not tell her what the subject of the investigation was. P.L. then came to the District Attorney's office with an attorney and certain stated information was elicited from her.
As to A.M. (last three counts of indictment #1088/64): Informed by other police officers that they learned from a wiretap that Raicus and Scharfstein would be at A.M.'s home on the following morning, Policewoman Merkel and another policewoman were staked-out there...
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