People v. Seligman
| Decision Date | 31 October 1967 |
| Citation | 55 Misc.2d 47,286 N.Y.S.2d 531 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Arthur SELIGMAN and Milton Nadel, Defendants. |
| Court | New York County Court |
Peter L. Maroulis, Poughkeepsie, for defendant, Arthur seligman.
Perry Satz, Poughkeepsie, for defendant, Milton Nadel.
John R. Heilman, Dist. Atty. (Albert M. Rosenblatt, Poughkeepsie, of counsel), for plaintiff.
This is a motion brought by both of the defendants in the above entitled prosecution, for a suppression of evidence under § 813--c et seq. of the Code of Criminal Procedure. Defendants demand that a hearing be held or that a suppression be granted of:
1. Any items of evidence seized as a result of a search of an automobile belonging to defendant Nadel.
2. Any items of evidence seized as a result of a search performed upon the person of defendant, Nadel.
3. Any items of evidence seized as a result of a search performed upon the person of defendant Seligman.
4. Any items of evidence which are the fruits of any illegal confession, statement or admission made by either of the named defendants.
5. Any evidence which is the product of illegally obtained recordings or wiretaps.
Defendants were indicted on the 11th day of April, 1967 by Indictment No. 37/67(1), which indictment was superceded by Indictment No. 37/67 dated April 24, 1967. The indictment herein stems from an investigation of the defendants who were conducting real estate appraisals for the Poughkeepsie Urban Renewal Agency.
Hearing granted with respect to any items of evidence seized as a result of the search of defendant Nadel's automobile. The fact that the prosecution does not contradict the allegations of defendant Nadel does not in itself entitle defendant to a suppression; for if the people consent to a hearing, answering papers are neither contemplated or required (Trainor v. Jefferson (Westchester County Court) N.Y.L.J., May 13, 1965, P. 20, Col. 8; People v. McCoy, 27 A.D.2d 858, 278 N.Y.S.2d 565).
Hearing granted with respect to any items of evidence seized as a result of the personal search of the defendants Nadel and Seligman. The people have conceded that an issue of fact is raised and do not oppose a hearing on this point (Trainor v. Jefferson, supra).
Motion denied with respect to the claim of defendants for the suppression of the fruits of any alleged illegally obtained statements, confessions or admissions of the defendants. Section 813--f of the Code of Criminal Procedure provides the procedure under which the validity of confessions is determined. The people have not given notice under said statute; therefore this phase of the defendants' motion is premature (People v. Myers, N.Y.L.J., January 19, 1967, P. 19, col. 5; People v. McGrath, N.Y.L.J., January 23, 1967, P. 18, col. 8).
Defendants also move for the suppression of any conversations that either of them may have had with Julius Schiller. They allege that these conversations were illegally 'seized' by the use of electronic devices. This claim of the defendants' motion actually involves two possible situations. The first refers to a conversation which took place at the Lido Riviera Restaurant in New York City. The second involves any conversations which may have been seized by the use of wire-taps.
Motion denied with respect to any conversations that may have been seized as a result of wire-taps. In his affidavit in opposition to the defendants' motion, the Assistant District Attorney stated, 'The People will have no wire-tapping evidence to offer upon a trial.' This statement was based upon the affidavit of Detective Lt. John B. Brophy of the City of Poughkeepsie Police Department, who denies the use of any wiretapping to obtain conversations of the defendants. To that extent, therefore, this motion is academic.
The claim of defendants, with respect to the Lido Riviera Restaurant conversations, raises a more significant question; for in that situation it is admitted by the people that the conversations of the defendants and Julius Schiller were in fact recorded on a tape recording device. The facts pertaining to these conversations, as set forth in the motion papers, are as follow: On or about the 24th day of February, 1967, local law enforcement officials were called upon to investigate a complaint of one, Julius Schiller, who told the authorities that he had been approached by the defendants with respect to the appraisal of his property, under the Urban Renewal program of the City of Poughkeepsie. The gist of Mr. Schiller's complaint was that the defendants were attempting to obtain money from him on a promise that they would falsify the appraisal of his property. The facts further spell out that the defendants, while in the City of Poughkeepsie and in their negotiations with Julius Schiller prior to the 24th day of February, 1967, advised Julius Schiller where he could contact them by telephone in the City of New York, after he got the money out of the bank. Thereafter, and with the advice and consent of local law enforcement officials, the said Julius Schiller drew $5000 out of his bank account at the Dutchess Bank & Trust Company of Poughkeepsie, in the City of Poughkeepsie and drove to New York City with several city police officials. It appears that he then accompanied these policemen to the New York City Police Department Bronx Headquarters, at which time he was given a tape recording device and instructed in the use of said device. Thereafter, the said Julius Schiller traveled to the Lido Riviera Restaurant in New York City. He called the defendants and defendant Nadel told him that they would be there in about twenty minutes. Shortly after the telephone call, the defendants joined the said Julius Schiller at the restaurant. Their conversation, which was approximately twenty minutes long, was recorded by Schiller on the miniature tape recorder, which he had been given by the Police Department. Following the conversations the defendants were arrested. It is the conversations at the Lido Riviera Restaurant which were recorded by Julius Schiller on a miniature tape recorder which defendants now seek to suppress.
The law is well settled that conversational communications are not 'physical evidence' under the requirement of § 813--c of the Code of Criminal Procedure, (People v. Laverne, 14 N.Y.2d 304, 309, 251 N.Y.S.2d 452, 455, 200 N.E.2d 441, 443; cf. People v. Habel, 25 A.D.2d 182, 183, 268 N.Y.S.2d 94, 95, aff'd., 18 N.Y.2d 148, 272 N.Y.S.2d 357, 219 N.E.2d 183). Even if there was no ruling on this point, however, this Court would deny the defendants' motion for the suppression of the Schiller conversations. First of all, Julius Schiller would always be competent to testify as to these conversations. Therefore, the conversations themselves cannot be suppressed. Second, the facts alleged by the defendants do not demonstrate that a trespassory situation existed with respect to the alleged eavesdropping. The Berger decision (Berger v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040) referred to by defendants in support of their motion demonstrates that the exclusionary rule in the eavesdropping case involves only 'trespassory intrusions' into constitutionally protected areas. The Court examined the development of this rule from the Olmstead case (Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944) through the Lopez decision (Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462). The decision is clear in its holding that the fourth amendment forbids only the actual intrusion into a constitutionally protected area. In this regard the dissent of Mr. Justice Black, which in this case does not conflict with the majority opinion, is pertinent:
(pp. 81--82, 87 S.Ct. p. 1895)
This Court is of the opinion that the Berger decision does not proscribe the type of action that occurred here.
If there were any doubt that the conversations at the Lido Riviera Restaurant did not violate the constitutional rights of the defendants, the cases of United States ex rel. Molinas v. Mancusi, 370 F.2d 601 (2 Cir. 1967); United States v. Knohl, 379 F.2d 427 (2 Cir. 1967) and Hurst v. United States, 370 F.2d 161 (5 Cir. 1967) make it clarion clear. In Knohl the Court pointed out (p. 443): 'The Fourth Amendment protects conversation only against the 'surreptitious eavesdropper'; it does not protect a 'wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. " In Hurst, supra, p. 165, the Court made the following holding:
'As to the use of the secret microphones, transmitters, and recording machines, we must emphasize that appellant's statements, there recorded or there overheard, were not recitations of past crimes. At...
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People v. Buckman
...while it does not entitle defendant to suppression of the evidence, does permit him a Hearing for that purpose. (People v. Seligman, 55 Misc.2d 47, 286 N.Y.S.2d 531.) Therefore, as is the customary practice in this court, it is hereby directed that a Suppression Hearing, pursuant to CPL Sec......