People v. Vespucci

• Decision Date: 15 February 1990
• Citation: 75 N.Y.2d 434,554 N.Y.S.2d 417,553 N.E.2d 965
• Parties: , 553 N.E.2d 965 The PEOPLE of the State of New York, Respondent, v. Anthony VESPUCCI et al., Appellants. The PEOPLE of the State of New York, Respondent, v. PRIVATE SANITATION INDUSTRY ASSOCIATION OF NASSAU/SUFFOLK, INC., Appellant. The PEOPLE of the State of New York, Respondent, v. JAMAICA ASH AND RUBBISH REMOVAL CO., INC., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 417

554 N.Y.S.2d 417

75 N.Y.2d 434, 553 N.E.2d 965

The PEOPLE of the State of New York, Respondent, v. Anthony VESPUCCI et al., Appellants.

The PEOPLE of the State of New York, Respondent, v. PRIVATE SANITATION INDUSTRY ASSOCIATION OF NASSAU/SUFFOLK, INC., Appellant.

The PEOPLE of the State of New York, Respondent, v. JAMAICA ASH AND RUBBISH REMOVAL CO., INC., Appellant.

Court of Appeals of New York.

Feb. 15, 1990.

Bernard S. Meyer and Andrew J. Turro, Mineola, for Anthony Vespucci and others, appellants in the first and second above-entitled actions.

Stephen P. Scaring, Mineola, and Laurie S. Hershey, Garden City, for Jamaica Ash and Rubbish Removal Inc., appellant in the third above-entitled action (who joins in above-listed arguments).

Ronald Goldstock, Director, Organized Crime Task Force (Steven Chananie and Martin Marcus of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

Defendants challenge their convictions principally on the ground that the Director of the New York State Organized Crime Task Force (OCTF) lacks authority to be an applicant for eavesdropping warrants. They premise this argument on the assertion that the State statute (CPL 700.05[5], which expressly includes the Director of OCTF as a law enforcement officer authorized to apply for warrants, is inconsistent with and violative of its Federal enabling antecedent (18 U.S.C. § 2516[2]. We conclude that there is no infirmity in the New York State statute or in its utilization to secure the challenged warrants obtained by OCTF's Director in accordance with the valid State statute and procedures. We are also satisfied that the sealing requirements of CPL 700.50(2) have been met on this record, and we therefore affirm the orders of the Appellate Division, 144 A.D.2d 48, 536 N.Y.S.2d 487; 146 A.D.2d 719, 538 N.Y.S.2d 466, which had affirmed defendants' convictions.

The most serious charges of which defendants were convicted were coercion and conspiracy. This culminated a lengthy and complex investigation by the OCTF into organized crime infiltration of the refuse-carting industry in Nassau and Suffolk Counties. A targeted victim of the criminal enterprise--a legitimate businessman--gave information in 1982 to the OCTF which triggered the specific investigation. Over the course of 13 months in 1982 and 1983, the OCTF uncovered the pervasive tentacles of organized crime in Long Island's carting industry, networked by a conspiracy of bribery and violent activities. Indictments ensued and all but one of the defendants pleaded guilty to the charges against them. Defendant Finnerty went to trial and was also convicted.

The OCTF's primary investigatory and evidence-gathering weapon was eavesdropping. Seven warrants were issued over the course of the probe. The OCTF Director applied for these eavesdropping warrants pursuant to CPL 700.05(5), which provides: " 'Applicant' [for an eavesdropping warrant] means a district attorney or the attorney general or if authorized by the attorney general, the deputy attorney general in charge of the organized crime task force " (emphasis added). Defendants contend CPL 700.05(5) is invalid because the Federal statute does not allow this State criminal law official to be included among the few authorized applicants. Therefore, they urge the evidence, otherwise legally obtained with the warrants, was illegally obtained and should have been suppressed.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 "impose[s] upon the States the minimum constitutional criteria for electronic surveillance" (People v. Shapiro, 50 N.Y.2d 747, 762-763, 431 N.Y.S.2d 422, 409 N.E.2d 897 [citations omitted]; 18 U.S.C. § 2510 et seq.). While a State may enact legislation more restrictive than the baseline protections allowed by this act, "any State law drawn more broadly * * * runs afoul of the supremacy clause (U.S. Const., art. VI, cl. 2)" (People v. Shapiro, supra, at 763, 431 N.Y.S.2d 422, 409 N.E.2d 897 [citation omitted]. Title III limits those who may be applicants for court-authorized eavesdropping warrants to "[t]he principal prosecuting attorney of any State, or the principal prosecuting attorney of any subdivision thereof, if such attorney is authorized by a statute of that State" (18 U.S.C. § 2516[2]. Defendants contend that the CPL 700.05(5) authorization of "the deputy attorney general in charge of the organized crime task force" impermissibly broadens the literal letter and the overarching purpose of that threshold part of title III. We disagree.

Defendants argue that conferring applicant status for securing court-ordered eavesdropping warrants on this sole specialized statutory Deputy Attorney-General violates the Federal statute because it uses the definitive article "the" in qualifying a "principal prosecuting attorney". Yet Congress was writing a generic enabling statute to cover the 50 widely varying official titles and chains of command in all the State jurisdictions. Also, countervailing congressional words and action elsewhere in the comprehensive Federal act and its legislative history support our rejection of this cramped construction: "State legislation enacted in conformity with this chapter should specifically designate the principal prosecuting attorneys empowered to authorize interceptions" (Sen.Rep. No. 1097, 90th Cong., 2d Sess., 1968, reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2189 [hereinafter Senate Report] [emphasis added]. The multiplicity, albeit high-level, of permissible applicants intended by Congress is additionally manifested by 18 U.S.C. § 2516(1), which lists six separate Federal prosecuting attorneys authorized to apply for eavesdropping warrants. Indeed, the statute enacted by Congress for the "State" (for title III purposes) of the District of Columbia permits the United States Attorney to "authorize * * * any investigative or law enforcement officer" to be an applicant (D.C.Code Annot. § 23-546[a]; see, Note, Significant Development, Electronic Surveillance--State Authorization of Wiretaps Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 56 BU L.Rev. 600, 606). We are further aided in our inquiry by this congressional admonition: "The important question [in determining valid applicants], however, is not name but function." (Senate Report, at 2187). Congress, we therefore conclude, did not intend the straitjacketed implementation of this important legislation urged upon us by defendants-appellants and the dissenting opinion. Congress instead reflected a more realistic and flexible, though limited, high- level roster of applicants (see also, United States v. Smith, 726 F.2d 852, 857-858).

An overall goal of title III is "delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized" (Senate Report, at 2153). To this end, the specific mandate of 18 U.S.C. § 2516(2) "provide[s] for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State" (Senate Report, at 2187). The essential question is whether the OCTF Director is precluded from qualifying as the "principal prosecuting attorney" within the language and meaning of 18 U.S.C. § 2516(2). An examination of the purpose and function of the New York State OCTF and its Director's responsibilities supports the view that this officer should not be written out of the New York State authorization statute, as that would ironically contradict the centralization objective of the Federal statute.

The proliferation-of-authorized-applicants hypothesis advanced by the dissent may be readily dispelled. In 1970, the New York State Legislature established a State-wide Organized Crime Task Force (Executive Law § 70-a). The stated reason for the creation of the OCTF is remarkably consonant with that underlying the enactment and the limitations of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 2516[2]: to insure centralization and consistency in law enforcement against organized crime (see, Legislative Findings, L.1970, ch. 1003, § 1[3], [4]. The consolidation intent embodied in the State's OCTF statute is further evidenced by the provision for the appointment of one special Deputy Attorney-General to the leadership responsibility for this whole field of endeavor. This officer, appointed by and serving at the pleasure of the Governor and Attorney-General (Executive Law § 70-a[2], is thus publicly accountable generally and to them specifically as the State's chief executive and highest elected law enforcement official. I can find no New York legislative trend creating State-wide special prosecutors enjoying the dual specific legislative mandate that the Director of the OCTF has (see, Executive Law § 70-a[2]; CPL 700.05[5]. Indeed, the Governor's formal Budget Message for 1990-1991 specifies an opposite trend: elimination of the Special Prosecutor for Corruption, in existence since 1972 (State Budget, at 103).

Another defense prong of attack is that a lack of "political accountability" should deprive the OCTF Director of eavesdrop warrant applicant status. Congress did express an intent that applicants "be limited to those responsive to the political process" (United States v. Giordano, 416 U.S. 505, 520, 94 S.Ct. 1820, 1829, 40 L.Ed.2d 341). However, the purpose of this requirement is to ensure that "[s]hould abuses occur, the lines of responsibility lead to an identifiable person" (Senate Report, at 2185). The legislative scheme of New York's Executive Law § 70-a, plus the requirement of authorization running to the Director from the regularly elected Attorney-General (CPL 700.05[5], have embodied in State law a sufficient assurance in this respect. Moreover, the Federal applicants enumerated in the Federal prosecutorial roster have no more political accountability...