People v. Sher

• Decision Date: 19 February 1976
• Citation: 38 N.Y.2d 600,345 N.E.2d 314,381 N.Y.S.2d 843
• Parties: , 345 N.E.2d 314 The PEOPLE of the State of New York, Respondent, v. Seymour SHER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 843

381 N.Y.S.2d 843

38 N.Y.2d 600, 345 N.E.2d 314

The PEOPLE of the State of New York, Respondent, v. Seymour SHER, Appellant.

Court of Appeals of New York.

Feb. 19, 1976.

J. Raymond Fisher, Albany, for appellant.

Sol Greenberg, Dist. Atty. (Dennis M. Acton, Albany, of counsel), for respondent.

JASEN, Judge.

On October 7, 1971, Seymour Sher was indicted by the Grand Jury of Albany County for the felony of possession of gambling records in the first degree. After trial, the jury convicted the defendant of the charge and the judgment of conviction was affirmed by the Appellate Division. We conclude that the People failed to provide a satisfactory explanation for the absence of seals on tapes of intercepted telephone conversations and would reverse the order of the Appellate Division.

The State Police, acting on the basis of surveillance reports and information derived from court-ordered wiretaps, obtained a search warrant commanding the search of Apartment B, 390 Madison Avenue, Albany, New York, as well as the person of the defendant, Seymour Sher. On August 26, 1971, the police executed the warrant, capturing the defendant and seizing gambling records, adding machines, unused stationery and over $1,300 in United States currency. At the trial, these items were introduced into evidence. A tape recording of an incriminating telephone conversati between the defendant and another person was played to the jury. Tape recordings of other equally incriminating conversations were admitted into evidence. The defendant made timely objections to the introduction of this evidence, on the ground that the People had failed to comply with the sealing requirement of CPL. (CPL 700.50, subd. 2; 700.65, subd. 3.) A police investigator did state, as an aside in his direct examination, that the tapes had been sealed pursuant to a court order and had been retained by the officer in his own custody. The tapes were unsealed two or three days prior to trial, 'for the purposes of this trial.'

CPL 700.35 (subd. 3) provides that the contents of any intercepted communication must, if possible, be recorded in such a manner as to protect the contents from editing or other alteration. Immediately upon the expiration of the eavesdropping warrant, the recordings 'must be made available to the issuing justice and sealed under his directions.' (CPL 700.50, subd. 2.) A person who has, pursuant to CPL provisions, obtained information concerning an intercepted communication 'or evidence derived therefrom' may not testify regarding this knowledge unless the seal is still present on the recordings or a satisfactory explanation for its absence is provided. (CPL 700.65, subd. 3.)

In People v. Nicoletti, 34 N.Y.2d 249, 253, 356 N.Y.S.2d 855, 857, 313 N.E.2d 336, 338, we held that the sealing requirement must be strictly construed. The need for rigid adherence to the statutory procedure is explained by the history of our present wiretapping provisions. Until 1968, the Federal Communications Act of 1934 prohibited any person unauthorized by the sender from intercepting and revealing the contents of any communication. (48 U.S.Stat. 1103, as amd. by U.S. Code, tit. 47, § 605.) On June 17, 1968, the Supreme Court held that the Federal statute precluded the States from introducing into evidence at State criminal trials evidence of telephone communications intercepted by State law enforcement officials. (Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166.) Earlier, the Supreme Court had set out the constitutional standards regulating the use of electronic eavesdropping equipment, as distinguished from wiretapping devices, by law enforcement officials. (Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.) Congress, in title III of the Omnibus Crime Control and Safe Streets Act of 1968, signed into law but two days after the Supreme Court's decision in Lee v. Florida (supra), authorized both Federal and State law enforcement officials to conduct wiretaps and other electronic surveillance, provided due compliance was made with statutory procedures designed to comport with the constitutional requirements. (U.S. Code, tit. 18, § 2516, subd. (2); Senate Report No. 1097, 1968, U.S.Code & Admin.News, pp. 2112, 2113.) Among the Congressional requirements was the direction that intercepted wire or oral communications be recorded, if possible. The recording should be done in a manner designed to protect the recording from editing and alteration, and be made available to the Judge that issued the warrant for sealing under his directions. 'The presence of the seal * * * or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or oral communication or evidence derived therefrom.' (U.S. Code, tit. 18, § 2518, subd. (8), par (a).)

The Federal Communications Act was modified to perm States to intercept wire and telephone communications in accordance with the congressional and constitutional guidelines. (U.S. Code, tit. 47, § 605.) Thereafter, our State revised its electronic surveillance statutes to comply with the Federal statutes. (Denzer, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL art. 700, pp. 242--243.) The provisions of CPL article 700 track, as they must, the language of the Federal law. From this review of the legislative history, it is clear that the requirements of article 700, which are reflective of controlling Federal law, must be strictly complied with. In 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. (U.S.Code, tit. 18, § 2515.)

The People contend, on this appeal, that the absence of the seals is...