People v. Varacalli

• Decision Date: 05 April 1993
• Citation: 596 N.Y.S.2d 346,154 Misc.2d 805
• Parties: The PEOPLE of the State of New York v. Ernest VARACALLI, Jr. and John Varacalli. The PEOPLE of the State of New York v. Nicola RINALDI. The PEOPLE of the State of New York v. Danny APICE.
• Court: New York Supreme Court

Page 346

596 N.Y.S.2d 346

154 Misc.2d 805

The PEOPLE of the State of New York v. Ernest VARACALLI, Jr. and John Varacalli.

The PEOPLE of the State of New York v. Nicola RINALDI.

The PEOPLE of the State of New York v. Danny APICE.

Supreme Court, Criminal Term Kings County, Part 5.

April 5, 1993.

Charles J. Hynes, Dist. Atty. by Etta M. Gumbs, and Jacqueline L. Spratt, Asst. Dist. Attys., Brooklyn, for the People.

Gino Josh Singer, New York City, for defendant Ernest Varacalli, Jr.

George S. Meissner, Meissner, Kleinberg & Finkel, New York City, for defendant John Varacalli.

Stephen R. Mahler, Mahler & Harris, P.C., Kew Gardens, for defendant Nicola Rinaldi.

Joseph Mure, Jr., Brooklyn, for defendant Danny Apice.

GLORIA GOLDSTEIN, Justice.

In the recently decided case of People v. Bialostok, 80 N.Y.2d 738, 594 N.Y.S.2d 701, 610 N.E.2d 374, the Court of Appeals enunciated a new doctrine relating to the legal requirements for the use of "pen register" devices in criminal investigations.

Bialostok determined that any electronic device capable of conversion from a pen register (which only records numbers dialed from a particular phone), into an instrumentality capable of intercepting conversations, must be treated as an eavesdropping device. Pursuant to the Criminal Procedure Law, use of this instrumentality would be permitted only after issuance of a magistrate's warrant based upon probable cause.

Defendants in the instant case were indicted on charges of Grand Larceny and Possession of Stolen Property predicated upon evidence derived from a pen register device. These cases raise issues concerning the retroactivity of Bialostok, as well as the requisite standing needed to bring a Bialostok motion. For the purpose of the within opinion, the three pending indictments will be considered jointly.

Defendants move to suppress the pen register device used in these cases on the grounds that it was installed without a warrant, and, further, that there was less than probable cause in contravention of Bialostok. Defendants additionally seek suppression of conversations obtained from a subsequent eavesdropping warrant and physical evidence from a subsequent search warrant which defendants contend constitute fruit of the illegal pen register.

Prosecution argues that the pen register utilized in these cases was issued in full compliance with Article 705 of the CPL, which, at that time, specifically authorized its use based on reasonable suspicion ¹; that, in any event, the subsequent eavesdropping warrants and search warrant were supported by probable cause independent of any evidence obtained from the pen register; and, further, that Bialostok should not be applied retroactively.

Initially addressing the question of retroactivity, this court finds that, contrary to the prosecution's position, Bialostok must be applied to these cases.

The most recent Court of Appeals pronouncements on retroactivity in People v. Mitchell, 80 N.Y.2d 519, 591 N.Y.S.2d 990, 606 N.E.2d 1381, establish a bright-line dichotomy governing the retroactive effect of any new rule of law. If a new rule is grounded in Federal constitutional principles, it must be applied retroactively as dictated by the United States Supreme Court in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649.

Factors cited by the prosecutor such as law enforcement's extensive reliance on prior authority and adverse effects on the administration of justice, may only be considered if the new rule is based exclusively on State law (People v. Pepper, 53 N.Y.2d 213, 440 N.Y.S.2d 889, 423 N.E.2d 366).

Bialostok was clearly predicated upon Federal constitutional principles. The entire underpinning of the court's holding was based on an analysis of Fourth Amendment considerations discussed in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220, and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. The court, in fact, expressly concluded that the ability to obtain the contents of phone conversations would involve Fourth Amendment rights under the rationale of those decisions.

While Bialostok dealt facially with a statutory interpretation of Article 700, that statute is rooted in Federal constitutional law (People v. Washington, 46 N.Y.2d 116, 121-122, 412 N.Y.S.2d 854, 385 N.E.2d 593). Thus, the Federal constitutional basis of Bialostok mandates its retroactive application.

An essential issue raised sua sponte is whether the defendants have standing under Bialostok to make application to controvert the pen registers herein involved.

Defendants were not the target of the original investigation which ultimately led to the charges currently filed against them. Members of the New York City Police Department's Auto Crimes Division had been engaged in an investigation into the activities of one Anthony Cuozzo who operated an auto glass shop in Kings County. Physical surveillance of a separate location utilized by Cuozzo revealed that Cuozzo was engaged in the wholesale theft and unlawful dismantling of automobiles. As a result of this physical surveillance and the knowledge obtained therefrom, an application was made for an order authorizing installation of a pen register on a telephone line at Cuozzo's auto glass shop, known as New Lots Auto Glass. The Justice entertaining the application granted the order on a showing of reasonable suspicion (as provided for under CPL 705), and authorized installation of a pen register on Cuozzo's telephone line for a period of sixty days. At the expiration of the sixty day period, an order was thereafter issued permitting the commencement of eavesdropping on the Cuozzo telephone. Subsequently, a search warrant was issued for Angle Auto Parts, Inc.

Defendants' conversations were subsequently overheard on the eavesdropping warrant. ² It is the pen register on the Cuozzo telephone line, however, which defendants now seek to controvert. Defendants contend that the eavesdropping and search warrants must be suppressed since they were based on information gleaned from the illegal pen register.

Under both New York State and Federal law (which preempts State law in the area of electronic surveillance [People v. Shapiro, 50 N.Y.2d 747, 763, 431 N.Y.S.2d 422, 409 N.E.2d 897], there are only three recognized categories which confer standing on a defendant to move for suppression of illegally obtained eavesdropping evidence.

Standing is limited to (1) a person who has a proprietary interest in the premises or telephone which is the subject of the wiretap (People v. Marans, 127 A.D.2d 795, 512 N.Y.S.2d 192; People v. La Rocca, 112 A.D.2d 1010, 492 N.Y.S.2d 647; Alderman v. U.S., 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176); or (2) a person who has had his conversations intercepted (U.S. v. Fury, 554 F.2d 522, cert. denied 436 U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776; People v. Troia, 104 A.D.2d 389, 478 N.Y.S.2d 715); CPL 710.10[5]; CPLR 4506[2][b]; or (3) a person against whom a wiretap is directed (U.S. v. Fury, supra; CPL 710.20 and 710.10[5]; CPLR 4506[2][c]; 18 U.S.C. 2510[11].

The defendants are not included under any of these three categories.

Defendants had no proprietary interest in the premises or telephone involved, their conversations were never intercepted, overheard or recorded on the pen register, and the pen register order was not directed against them.

The fact that defendants' conversations were overheard on the eavesdropping warrant grants them no derivative right to contest...