People v. Versace

• Decision Date: 24 March 1980
• Citation: 73 A.D.2d 304,426 N.Y.S.2d 61
• Parties: The PEOPLE, etc., Respondent, v. Pasquale VERSACE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 61

426 N.Y.S.2d 61

73 A.D.2d 304

The PEOPLE, etc., Respondent, v. Pasquale VERSACE, Appellant.

Supreme Court, Appellate Division, Second Department.

March 24, 1980.

Lenefsky & Lenefsky, P. C., New York City (David Lenefsky, New York City, of counsel), for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Stephanie Mary Mahon and Gerald D. Reilly, White Plains, of counsel), for respondent.

Before HOPKINS, J. P., and RABIN, O'CONNOR and WEINSTEIN, JJ.

O'CONNOR, Justice.

A tip received from a reliable informant triggered a police investigation into allegations that a substantial gambling operation was being conducted at the 19th Hole Bar in White Plains. In May, 1977 Carl Vergari, the Westchester County District Attorney, sought an eavesdropping warrant for two telephones located on the premises. In support of the application, Detective Robert Pockl asserted that a prolonged period of surveillance had been unable to establish who supervised and controlled the gambling operation. It was these higher echelon people who were the targets of the probe. Attempts to infiltrate the group involved in the illicit activity had proven unavailing because those involved were very careful and wary in protecting their enterprise. Associates of the targets would not reveal information. Search warrants had been executed on the premises in the past, and they had uncovered illegal policy slips, but access to higher-ups could not be realized in this manner. On May 6, 1977 Judge LEGGETT issued a 30-day eavesdropping warrant for two telephones located at the premises in question.

The investigation mushroomed as a result of the success of the initial tap. On June 2 Judge LEGGETT issued a 30-day eavesdropping warrant for the private telephone of James Williams. Williams, who had a prior gambling conviction, had been recorded discussing various gambling transactions on four separate occasions over the 19th Hole Bar telephones. Pockl, in seeking the Williams warrant, asserted that conventional surveillance of Williams' private residence could not be conducted because of an absence of adjacent buildings and the nature of the neighborhood. Furthermore, Williams had always been cautious and search warrants previously executed against him had not resulted in arrests. Conventional surveillance would also not lead to the gathering of evidence against the loftier hierarchy of the operation.

The intricate web of the outlawed business continued to reveal itself to the listening ears of the police, and on June 27, a third 30-day eavesdropping warrant was issued by Judge LEGGETT to tap the telephone at the Neighborhood Store, a business establishment operated by defendant's brother, Rick Versace. In obtaining the warrant, Pockl noted that Rick Versace had two prior gambling convictions, and further related the substance of four conversations between June 8 and June 18 which indicated that Rick Versace was one of the higher-ups in the operation. The difficulty with conducting conventional surveillance and investigative techniques was again cited as a basis for obtaining the warrant.

Finally, on July 2, Judge COUZENS authorized a 15-day extension of the original Williams warrant, which expired on that day. Pockl claimed that the hierarchy of the conspiracy was finally becoming vulnerable. Reliance was placed on various intercepted conversations involving gambling, including at least five communications between Williams and defendant between June 14 and June 25 during which defendant provided Williams with tabulations on policy bets collected by Williams' runners.

The original Williams tap expired on July 2 but the tapes were not sealed until July 13. The Williams extension order expired July 18 and the tapes were sealed that same day. On July 29, some 40 hours after the warrant expired, the District Attorney's staff sealed the tapes from the Neighborhood Store tap, and the tapes were judicially sealed on August 1.

On July 25 Judge MARTIN issued a search warrant for defendant's residence. In applying for the warrant, Pockl relied on several matters: A June 30 conversation obtained from the original Williams tap indicated defendant gave money to Williams to distribute to winners. Again on July 14 Williams and defendant discussed various gambling matters. A tape from the tap on the Neighborhood Store showed that defendant and his brother, Rick, both with criminal records, had talked about betting. The conversation also indicated that defendant kept illegal gambling records at home for reference purposes. Williams had already been arrested on July 20.

The search of defendant's house led to the discovery of an unregistered .25 caliber pistol and a slot machine. By order dated April 3, 1978 Judge LEGGETT ruled, inter alia, that the initial warrant on the 19th Hole Bar was properly issued, that the circumstances justified the use of eavesdropping methods of investigation, and that other technical objections were without merit. In response to subsequent suppression motions Judge DELANEY found that the warrants to eavesdrop on the Neighborhood Store and to extend the Williams tap were proper, as was the issuance of the search warrant on July 25. The tapes from the original Williams tap would have to be suppressed, however, because of the unreasonable 11-day delay in sealing them.

Defendant subsequently pleaded guilty to the crime of attempted criminal possession of a weapon in the third degree. This appeal followed. We now affirm.

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