People v. Weir

• Decision Date: 21 November 1991
• Parties: The PEOPLE of the State of New York, Respondent, v. James WEIR, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 426

576 N.Y.S.2d 426

177 A.D.2d 811

The PEOPLE of the State of New York, Respondent, v. James WEIR, Appellant.

Supreme Court, Appellate Division,

Third Department.

Nov. 21, 1991.

Maryanne Bukolt, Plattsburgh, for appellant.

Robert Abrams, Atty. Gen. (Valerie J. Salerno, Law Intern), Albany, for respondent.

Before MAHONEY, P.J., and CASEY, LEVINE, MERCURE and HARVEY, JJ.

MAHONEY, Presiding Justice.

Appeal from a judgment of the County Court of Clinton County (Lewis, J.), rendered December 14, 1990, convicting defendant upon his plea of guilty of the crime of attempted conspiracy in the second degree.

Defendant appeals from the judgment of conviction following his plea of guilty to second degree attempted conspiracy for his involvement in cocaine distribution in and around Clinton County. Defendant had previously sought the suppression of evidence obtained by police through telephone eavesdropping surveillance. County Court denied defendant's motion to suppress and defendant subsequently entered his plea with the right to challenge the suppression denial specifically preserved. Defendant was sentenced to an indeterminate prison term of 1 1/2 to 4 1/2 years and this appeal followed.

We affirm. The greater part of defendant's appeal is aimed at claimed error on County Court's part in failing to suppress evidence received through electronic eavesdropping. Defendant claims that the wiretap warrant for his telephone was not based upon the requisite probable cause and that the People failed to demonstrate that alternative investigative methods had been or would be unsuccessful. These arguments were specifically rejected by this court upon a codefendant's appeal (People v. Baker, 174 A.D.2d 815, 570 N.Y.S.2d 857 [1991], lv. denied 78 N.Y.2d 920, 573 N.Y.S.2d 472, 577 N.E.2d 1064) and we likewise reject them here. ¹ In addition, we reject defendant's argument that the police illegally wiretapped the phone of Wade Eagle, defendant's "tenant", and thus somehow infected the legality of defendant's wiretap. The record indicates that "Eagle's telephone" was not tapped. Furthermore, although the number was listed in Eagle's name, it was billed to defendant and located in defendant's home, and nothing in the record supports the conclusion that the telephone was in a separate apartment, inaccessible to defendant. Accordingly, the People's showing of probable cause is not undermined by the fact that the police also obtained a warrant to tap another telephone owned by defendant, listed to a third party but accessible to defendant.

As to defendant's remaining arguments, we summarily reject...