People v. Sossa

Decision Date04 March 1974
Citation77 Misc.2d 98,352 N.Y.S.2d 872
PartiesThe PEOPLE of the State of New York, Plaintiff, v. Hugo SOSSA, Defendant.
CourtNew York City Court

Eugene Gold, Dist. Atty. (Michael Alan Schwartz, Brooklyn, of counsel), for plaintiff.

William Gallagher and Harvey B. Fishbein, Brooklyn, for defendant.

EUGENE R. CANUDO, Judge.

The question now before the court is a novel one: whether a judge of the Criminal Court, who lacks statutory authority to issue an eavesdropping warrant, nevertheless has the right and authority under current law to review the basis for, and--if necessary--vacate an eavesdropping warrant issued by a justice of the State Supreme Court.

Under a warrant issued last year in Supreme Court, Authorizing interception of communications on a certain telephone instrument at a specified location, certain conversations were overheard. The participants were (1) the resident of the premises at which the instrument was located, and (2) the defendant Hugo Sossa. A search warrant was subsequently issued by a judge of the Criminal Court, based upon information divulged through these conversations. It authorized a search of Sossa's apartment for narcotics and narcotics paraphernalia. The search warrant was executed, and Sossa was placed under arrest and charged with three felonies involving the possession of narcotic contraband. A preliminary hearing was held in Criminal Court, and all the charges were reduced to misdemeanors, thus vesting final jurisdiction over the case in this court.

Sossa has moved under Article 710 of the Criminal Procedure Law for suppression of this evidence. Among other things, he claims that the eavesdropping warrant was improperly issued, and that it should be vacated. It is his position that the Legislature intended to confer upon the Criminal Court full jurisdiction to hear and determine All issues in misdemeanor cases, even where it means that a judge of this court may exclude, as fruit of the poisoned tree, evidence emanating from the execution of an improperly-issued eavesdropping warrant. The People, on the other hand, say that this would constitute illegal usurpation by a lower court judge of the function of a superior court, giving him authority to do in appellate review that which he could not have done in the first instance. The District Attorney requests that the particular issue be referred to the Supreme Court for hearing and determination.

No decisions have been found on the specific issue. This is understandable, when one considers the newness of the Criminal Procedure Law and the many substantive and procedural changes which it brought about. However, the basic principle--whether a lower court may review a higher court's action--is not new. A century ago New York City's notorious 'Boss' Tweed contested the legality of multiple penitentiary sentences and fines, on various misdemeanors which had been lumped into a single indictment. On the dispute as to jurisdiction, whether habeas corpus relief belonged in the Supreme Court or in the Court of Oyer and Terminer (in which Tweed had been tried), the Court of Appeals said, in People ex rel. Tweed v. Liscomb, 60 N.Y. 559, 568: 'It is no new feature in the law that inferior magistrates may, when thereunto called, sit in judgment upon the jurisdiction of the highest courts, when their process or judgments come collaterally before them.'

Judge David T. Gibbons cited Tweed in 1963 in People v. Kissinger, 40 Misc.2d 273, 242 N.Y.S.2d 936, sustaining the right of the Nassau County District Court to review a Supreme Court search warrant in order to avoid multiplicity of motions in different courts at different times. 'Jealous preservation of judicial status,' he said (p. 274, 242 N.Y.S.2d p. 938), 'should not be a factor of greater importance than the efficient administration of justice.' A similar ruling was made--this time in relation to a wiretap order under the Code of Criminal Procedure--in People v. Machlowitz, in 1966, in 49 Misc.2d 358, 267 N.Y.S.2d 352. Four years later Judge David O. Boehm, in People v. Gray, 61 Misc.2d 769, 306 N.Y.S.2d 487, held the other way, ruling that, as a County Court judge, he lacked the authority to controvert a Supreme Court search warrant. No doubt he relied on precedents that had developed between 1963 and 1970, and he discussed People v. Gatti, 16 N.Y.2d 251, 265 N.Y.S.2d 641, 212 N.E.2d 882 (1965), to the effect that under the Code of Criminal Procedure a motion to contravene a search warrant belonged in a separate proceeding before the judge who had issued it, as against a motion to suppress evidence, which had to be considered in the court in which the defendant was to be tried. Judge Boehm also referred to the suggestion made by the Appellate Division in the Second Department in 1967, in People v. Ortiz, 27 A.D.2d 392, 280 N.Y.S.2d 480, that the Legislature strengthen the orderly adjudication of criminal actions by combining these two motions in one proceeding in one court. This is exactly what the Legislature did in the Criminal Procedure...

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3 cases
  • People v. Basilicato
    • United States
    • New York County Court
    • June 23, 1982
    ... ...         Such is not the case. CPL, Article 710, governs Motions to Suppress Evidence generally, and Section 710.50, CPL, specifies in which Court a Motion to Suppress Evidence is made. See also People v. Fusco, 75 Misc.2d 981, 983, 348 N.Y.S.2d 858; People v. Sossa, 77 Misc.2d 98, 352 N.Y.S.2d 872. The instant motion to suppress will be heard and determined in the Trial Court with no violation of the concept of "economy of judicial resources" ...         Firmly embedded in our jurisprudence is the principle that one Judge of coordinate jurisdiction ... ...
  • People v. Guenther
    • United States
    • New York County Court
    • April 9, 1974
    ... ... In the instant case however, the result of referring this motion to the trial court would be to give review to a justice who lacks the authority to issue the eavesdropping warrant. This specific issue was before the Court in People v. Sossa, Crim.Ct., 77 Misc.2d 98, 352 N.Y.S.2d 872 ...         [77 Misc.2d 646] ... In Sossa, an eavesdropping warrant was issued by a New York Supreme Court Justice; after a preliminary hearing all charges were reduced to misdemeanors and, as a result, final jurisdiction was in the Criminal ... ...
  • DeJoy v. Zittell
    • United States
    • New York Supreme Court — Appellate Division
    • February 23, 1979
    ...was issued by a Justice of the Supreme Court (People v. Fusco, 75 Misc.2d 981, 983, 348 N.Y.S.2d 858, 862; see also People v. Sossa, 77 Misc.2d 98, 352 N.Y.S.2d 872; People v. Guenther, 77 Misc.2d 643, 354 N.Y.S.2d Petition granted, without costs. ...

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