People v. Schulz

• Decision Date: 27 March 1986
• Citation: 492 N.E.2d 120,67 N.Y.2d 144,501 N.Y.S.2d 12
• Parties: , 492 N.E.2d 120 The PEOPLE of the State of New York, Appellant, v. Jeffrey A. SCHULZ, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 12

501 N.Y.S.2d 12

67 N.Y.2d 144, 492 N.E.2d 120

The PEOPLE of the State of New York, Appellant, v. Jeffrey A. SCHULZ, Respondent.

Court of Appeals of New York.

March 27, 1986.

Larry M. Himelein, Dist. Atty., for appellant.

J. Kevin Laumer, Jamestown, for respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

Evidence derived from an intercepted communication must be suppressed where there has been a failure to comply with the notice provision of CPL 700.70, and where there has been neither an application for an extension of time within the 15 days provided in that statute nor a showing of good cause for noncompliance and lack of prejudice to defendant.

In March of 1981, the Chautauqua County Drug Task Force began investigating the drug trafficking activities of Gary Hemphill and in connection therewith an undercover police officer made two purchases of LSD from Hemphill. In an effort to gain access to Hemphill's supplier, the undercover police officer made arrangements with Hemphill to purchase a large quantity of drugs.

In furtherance of the investigation, the Chautauqua County District Attorney applied for and was issued an eavesdropping warrant on Hemphill's telephone. Conversations between Hemphill and defendant pertaining to drugs were recorded and on September 18, 1981, Hemphill sold the undercover police officer 10,000 "hits" of LSD that he had purchased from defendant in Cattaraugus County. Hemphill was arrested, and as part of a plea agreement gave testimony before a Cattaraugus County Grand Jury that implicated defendant.

Defendant was subsequently indicted by the Cattaraugus County Grand Jury for criminal sale of a controlled substance in the second degree (Penal Law § 220.41[4] ) and was arraigned on September 22, 1982. Copies of the eavesdropping application and warrant were not served on defendant until November 23, 1982, 61 days after defendant was arraigned. On February 8, 1983, defendant moved to suppress the tapes, for, among other things, failure to comply with CPL 700.70. ¹ In opposing the motion the People contended that there was "good cause" for the delay in that they had been erroneously informed by the Chautauqua County Task Force that the application and warrant had been served on defendant and when the error was discovered, service was promptly made. Moreover, they argued that defendant was not prejudiced by the delay because he had been aware at all times of the existence of the tapes and knew that the wiretap evidence would be introduced against him. The motion to suppress was denied following a hearing and defendant was thereafter convicted, upon a jury verdict, and sentenced.

On appeal from the judgment of conviction, the Appellate Division, 112 A.D.2d 790, 492 N.Y.S.2d 288, reversed the conviction on the law, granted the motion to suppress and ordered a new trial. The People have appealed by leave of a judge of this court.

I

We begin our discussion by reaffirming that there must be strict compliance with the provisions of New York's eavesdropping statute (CPL art. 700) and that the burden of establishing such compliance rests with the prosecution (People v. Gallina, 66 N.Y.2d 52, 57, 495 N.Y.S.2d 9, 485 N.E.2d 216; People v. Basilicato, 64 N.Y.2d 103, 485 N.Y.S.2d 7, 474 N.E.2d 215; People v. Washington, 46 N.Y.2d 116, 121-122, 412 N.Y.S.2d 854, 385 N.E.2d 593; People v. Sher, 38 N.Y.2d 600, 603-605, 381 N.Y.S.2d 843, 345 N.E.2d 314; People v. Mark, 68 A.D.2d 315, 318, 417 N.Y.S.2d 149). As we observed in People v. Washington, 46 N.Y.2d, at pp. 121-122, 412 N.Y.S.2d 854, 385 N.E.2d 593, supra "[o]ur interpretation of article 700 must be sensiti to the constitutional guarantees against search and seizure that the statute seeks to protect. The insidiousness of electronic surveillance threatens the right to be free from unjustifiable governmental intrusion into one's individual privacy to a far greater extent than the writs of assistance and general warrants so dreaded by those who successfully battled for the adoption of the Bill of Rights (Olmstead v United States, 277 US 438, 476, 478 [48 S.Ct. 564, 571, 572, 72 L.Ed. 944] [Brandeis, J., dissenting] )". It is imperative, therefore, that "article 700 and all its integral parts [not] be treated lightly or with cavalier disregard" (People v. Mark, 68 A.D.2d 315, 318, 417 N.Y.S.2d 149, supra) and that law enforcement officials be sensitive to the fact that there must be meticulous adherence to the terms of the warrant and the statute pursuant to which it issued (see, People v. Washington, 46 N.Y.2d, at p. 124, 412 N.Y.S.2d 854, 385 N.E.2d 593, supra). In sum, "the requirements of article 700 * * * must be strictly complied with [and i]n the absence of compliance, the State officials lack authority to wiretap, and any interceptions they make are unlawful, and any evidence derived from the wiretap is inadmissible" (People v. Sher, 38 N.Y.2d, at p. 604, 381 N.Y.S.2d 843, 345 N.E.2d 314, supra). The failure of the People here to comply with CPL 700.70 requires suppression of the evidence obtained through the wiretap. Therefore, there should be an affirmance of the Appellate Division order.

II

CPL 700.70 prohibits the receipt in evidence or the disclosure otherwise upon the trial of a defendant of the "contents of any intercepted communication, or evidence derived therefrom * * * unless the people, within fifteen days after arraignment and before the commencement of the trial, furnish the defendant with a copy of the eavesdropping warrant, and accompanying application, under which interception was authorized or approved."

It is undisputed that defendant was not furnished with a copy of the eavesdropping warrant and application until 61 days following his arraignment. Nevertheless, the People contend that there was "substantial" compliance with the statute, and in reliance upon the last sentence of CPL 700.70, which provides that the "fifteen day period may be extended by the trial court upon good cause shown if it finds that the defendant will not be prejudiced by the delay in receiving such papers", argue that they have made a sufficient demonstration of "good cause" to warrant extension of the 15-day period. They argue moreover, that since the purpose of CPL 700.70 is to notify a defendant that his conversations obtained pursuant to an eavesdropping warrant are to be used against him and to afford him an opportunity to move to suppress them, here, where defendant clearly was aware of the taped conversations and had ample opportunity to move for their suppression, he was not prejudiced by the delay and therefore, exclusion is not warranted. The People urge that the "good cause" requirement of CPL 700.70 should be analogized to the "good cause" requirement of CPL 710.30, where it has been held that the defendant's actual knowledge of the information that is the subject of the notice requirement constitutes good cause to excuse untimely service. They offer as the reason for the delay here the fact that the police agency of another jurisdiction which had conducted the investigation erroneously advised that the documents had been served. We reject these arguments.

We reject the contention that good cause, such as would warrant an extension of the 15-day period, has been demonstrated. We note that the People did not move for an extension of time prior to the expiration of the 15-day period, nor did they affirmatively seek to excuse their failure to comply with the statute. It has been suggested that "[t]he better procedure, where compliance cannot be satisfied, is for the prosecutor to seek an extension of time prior to the expiration of the statutorily authorized fifteen days" (Bellacosa, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 700.70). The language of CPL 700.70 provides that the "fifteen day period may be extended" (emphasis supplied) and thus contemplates that an application be made prior to the expiration of the statutory period. This is made clear when that language is compared to the...