People v. Trasso

• Decision Date: 15 June 1981
• Citation: 110 Misc.2d 438,440 N.Y.S.2d 504
• Parties: The PEOPLE of the State of New York v. Raymond TRASSO and James Conoscenti, Defendants.
• Court: New York City Court

Page 504

440 N.Y.S.2d 504

110 Misc.2d 438

The PEOPLE of the State of New York v. Raymond TRASSO and James Conoscenti, Defendants.

Criminal Court of the City of New York,

New York County.

June 15, 1981.

Robert M. Morgenthau, Dist. Atty., New York City, for the People; James M. McGuire, of counsel.

Michael L. Santangelo, New York City, for defendants.

RENA K. UVILLER, Judge.

The issue presented by this motion to controvert a search warrant is this: Is a defendant at a suppression hearing entitled to the assistance of the prosecutor in learning whether he has been the subject of wiretapping, even though the People have given no notice of intention to use wiretap evidence at trial? Whether a defendant is entitled to such assistance and what showing he must make, if any, in order to acquire it, appear not to have been addressed by any reported state court opinion.

As a concomitant of their motion to controvert, the defendants in this case seek an order directing the People to inquire of New Jersey authorities whether or not the defendants have been subjected to electronic surveillance in New Jersey, and for the People to affirm or deny such surveillance. No notice has been served by the People that they intend to use any wiretap evidence at trial.

The People oppose the motion to controvert and the order to inquire and report on the ground the defendants have failed to provide a sufficient basis for their assertion that they were tapped. Relying upon People v. Cruz, 34 N.Y.2d 362, 357 N.Y.S.2d 709, 314 N.E.2d 39 (1974), the People argue that "apart from defendants' bare assertion of electronic surveillance by New Jersey authorities are presently unaware of any reason to believe that such surveillance has occurred. The People are not presently possessed of sufficient information to either affirm or deny defendants' claim." (People's affidavit.)

The affidavit of Detective Joseph Mazzilli, upon which the search warrant in this case issued, states that as a result of a continuing investigation by the Manhattan South Public Morals Squad in Major Case # 001-78, and in cooperation with New Jersey law enforcement agencies concerned with organized gambling, the affiant has been in communication with Detective Dennis Watson of the Middlesex, New Jersey, prosecutor's office; that Detective Watson had previously provided affiant Mazzilli with information resulting in gambling convictions; that Detective Watson told the affiant that he, Watson, had a confidential informant who has been placing bets at two Manhattan telephone numbers. A check of these numbers led the affiant to a New York apartment where, listening from a common hallway, he heard two phones ringing; that the defendant who was known to the affiant as a convicted gambler, was observed leaving the premises on two occasions and that on one of these occasions the defendant had bookmaking records in his hand.

The defendants, skeptical of a confidential informant's existence, allege that the information about the gambling operation came from wiretaps. Their affidavit, however, specifies no dates on which they were allegedly tapped. They state only that "in the past, the Public Morals Squad has made scores of arrests under major case # 001-78" on the basis of information from New Jersey authorities, that "most ... of these arrests were accomplished as a result of wiretaps by the New Jersey State Police." Further that information from New Jersey wiretaps "is and was many times in the past conveyed to the New York authorities (and that) the 'modus operandi' of the New Jersey-New York cooperative effort under case # 001-78 has been and presumably continues to be the use by the New Jersey authorities of electronic surveillance." (Defendant's affidavit.)

There is, in New York, no mechanism by which a defendant may learn whether he has been subjected to electronic surveillance unless the People intend to introduce the tapes, or evidence derived therefrom, at trial. If the People do intend to introduce such evidence at trial, they must, of course, furnish the defendant with a copy of the eavesdropping warrant and the accompanying application within fifteen days of arraignment. (CPL 700.70.) Indeed, the tapes themselves must be provided to the defendant within twenty days of his demand. (CPL 240.20.) But if wiretapping has occurred and the People do not choose to rely upon it, there is no statutory vehicle through which the defense may learn of its occurrence. Moreover, there are no means of challenging the People's representation that no trial evidence will be the fruit of a wiretap, legal or illegal.

People v. Cruz, supra, upon which the People rely, did not concern a defendant's pre trial effort to learn of electronic surveillance. In Cruz, the defendant at trial asserted that the prosecutor's cross-examination of the codefendant derived from information obtained through wiretapping of defense counsel's telephone. The People denied this and submitted the prosecutor's file for the trial court's perusal, which apparently satisfied the trial court that no wiretapping had occurred.

The issue in Cruz was whether, in addition to the foregoing, a hearing should have been held to further probe the eavesdropping issue. In affirming the defendant's conviction the Court of Appeals held that in light of the prosecutor's firm denial and the judge's review of his file, the court was not obliged to interrupt the trial to conduct a hearing.

The Court of Appeals went on to note, however, that defense allegations of use of evidence from undisclosed wiretaps, whether the taps are legal or illegal, "raise serious questions affecting the very integrity of the judicial process." (34 N.Y.2d at 369, 357 N.Y.S.2d 709, 314 N.E.2d 39.) For that reason the court prescribed standards governing future cases where the defense raises allegations of this sort. The defendant, the Court of Appeals provided, has the burden of coming forward with considerable specificity as to the dates, times and telephone numbers involved in the alleged tapping, as well as "the facts ... which allegedly link the suspected surveillance to the trial proceedings." (Ibid.) Thereupon the prosecutor must affirm or deny the allegations, identifying the law enforcement agencies and individuals contacted and the substance of the inquiries and the denials.

To be sure, the defense allegations of wiretapping in this case lack the specificity of those in Cruz. The claim here is little more than a broadside to the effect that "everybody knows" that New Jersey authorities wiretap anyone suspected of gambling. Nor is the People's waffling response in this case a model of specificity.

Although neither the defendants' claim nor the People's response measure up to Cruz guidelines, those instructive standards are not apposite here for two reasons. First, as noted earlier, the People in Cruz unequivocally denied the wiretapping allegations and satisfied the court on that score by submitting their file for perusal; the Cruz standards thus relate to the showing required before the defense is entitled, in addition, to an evidentiary hearing. Cf. People v. Grieco, 94 Misc.2d 1043, 406 N.Y.S.2d 426 (N.Y.C. Criminal Ct., 1978). Here we are concerned only with what showing, if any, is required to trigger the prosecutor's preliminary inquiry and report.

Second, Cruz related to a wiretapping claim raised at trial and did not concern the defendant's right to discover the existence of taps at the suppression stage. ¹ Cruz thus leaves two questions unanswered: First, is the defendant entitled at the suppression stage, not to a hearing, but to a good faith inquiry and report by the People? Second, is a specific showing necessary in order to trigger the prosecutor's duty?

In a federal prosecution defendants have a statutory mechanism to learn at any stage of the proceedings whether or not they have been subjected to electronic surveillance. 18 U.S.C. § 3504. Subsection one of the federal statute provides that

"any trial, hearing, or other proceeding before any court, grand jury ... or other authority, ...

(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of any unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act or because it was obtained by the exploitation of any unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act...."

Federal courts have held that under the foregoing section the mere assertion that unlawful wiretapping has occurred is sufficient to compel an affirmance or denial by the Government. No preliminary showing by the allegedly aggrieved party is required. (Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 United States v. Vielguth, 502 F.2d 1257 In re Evans, 452 F.2d 1239 United States v. Toscanino, 500 F.2d 267 While it is true that most of the reported federal cases involve a wiretapping claim by witnesses before a grand jury or by defendants at trial (see, United States v. Huss, 482 F.2d 38 the clear language of section 3504 as well as its legislative history confirm that its purpose is to provide the crucial information at the earliest stage of the proceedings. ² In a federal prosecution these defendants would clearly be entitled to the data they now seek.

Although section 3504 does not apply to the States (People v. Einhorn, 45 A.D.2d 75, 356 N.Y.S.2d 620, revd. 35 N.Y.2d 948, 365 N.Y.S.2d 171, 324 N.E.2d 551 the New York eavesdropping statutes "were intended, when enacted, to harmonize State law on electronic surveillance with Federal law." (People v. Mulligan, 40 A.D.2d 165, 166, 338 N.Y.S.2d 488 Accordingly, New York courts have largely extended to state defendants the same rights enjoyed by federal parties and witnesses.

In Einhorn, supra, the Appellate Division reversed a...