People v. Winograd

• Decision Date: 20 August 1984
• Citation: 480 N.Y.S.2d 419,125 Misc.2d 754
• Parties: The PEOPLE of the State of New York v. Joseph WINOGRAD and Sylvia Winograd, Defendants.
• Court: New York Supreme Court

Page 419

480 N.Y.S.2d 419

125 Misc.2d 754

The PEOPLE of the State of New York v. Joseph WINOGRAD and Sylvia Winograd, Defendants.

Supreme Court, Criminal Term New York County, Part 50.

Aug. 20, 1984.

Robert M. Morgenthau, Dist. Atty., New York County (Beth Jacob, Asst. Dist. Atty., of counsel), for the People.

Hochheiser & Aronson, New York City (Lawrence Hochheiser, New York City, of counsel), for defendant Joseph Winograd.

Frank Lopez, New York City, for defendant Sylvia Winograd.

HAROLD J. ROTHWAX, Justice:

The defendants, husband and wife, have been indicted jointly on 51 counts for Criminal Usury (Penal Law § 190.42) and on 16 counts for Criminal Possession of Stolen Property (Penal Law § 165.50). The indictment is the result of an investigation into an alleged fencing operation conducted by the defendant furriers from their place of business, Thrifty Fashions, at 208 West 30th Street in New York County. The investigation focused upon the defendants after an informant of demonstrated reliability passed purportedly stolen fur pelts to an intermediary on several occasions. The intermediary, under police surveillance, apparently sold the pelts to the defendants. The intermediary was subsequently arrested in a robbery of furs, and identified defendants as his fence. He refused to cooperate further. The informant was exposed in an unrelated prosecution. Thereafter, the police obtained permission from the management of the building at 208 West 30th Street to install a video camera in the common hallway opposite the outer door of defendants' business. The camera allowed officers to observe, without hearing, the hallway area in front of the door and the immediate interior of the premises when the door was opened. The surveilling officers recorded their observations on videotape and kept a log of such observations as they deemed pertinent to the investigation. As a result of six weeks of video surveillance and of information received from the informants, previously noted, the district attorney obtained an eavesdropping warrant effective July 12, 1983, for the interception of conversations "occurring in the hallway outside of and in the offices of Thrifty Fashions" during defendants' business hours, Monday through Friday from nine in the morning until seven in the evening, relevant to the crime of possession of stolen property, involving defendants and "their accomplices, co-conspirators and agents some of whom are as yet unknown." Included in the affidavit of a police lieutenant submitted in support of the warrant was information obtained the previous day from an informant who stated that he had given defendants fur pelts as collateral against money that he had borrowed from defendants at usurious rates. Once eavesdropping commenced, conversations concerning other usurious loans made by the defendants were intercepted. On August 11 the warrant as amended was extended for thirty days, until September 10. On the expiration date, a Saturday, the justice who had been designated by the issuing justice (then on vacation) to supervise execution of the warrant was unavailable, due to religious observances. The supervising justice had apparently been unavailable from the preceding Wednesday, September 7. The warrant was not, therefore, extended on or before September 10, but was allowed to expire. The eavesdropping devices were deactivated from the termination of authorization under the extended warrant at 7:00 p.m. on Friday, September 9, until after a new eavesdropping warrant was obtained from the justice designated to supervise the eavesdropping sometime on Monday, September 12. On September 16, relying entirely upon results of the July 12 warrant and August 11 extension, a search warrant was obtained for the premises of Thrifty Fashions, authorizing the seizure by photographing of books and records relating to the making and collecting of usurious loans. On October 11, the September 12 warrant was extended for thirty days. Eavesdropping ceased, however, on Friday, October 28 and the devices were permanently inactivated on Monday, October 31. On October 29, a second search warrant issued for the premises of Thrifty Fashions.

The defendants move to suppress evidence obtained by the video surveillance upon the ground that no warrant was sought to authorize the surreptitious viewing; to suppress evidence obtained by the eavesdropping devices on the ground that usury is not an offense for which electronic surveillance is authorized by the federal statute (18 U.S.Code § 2516, subd. 2); and on the ground that interceptions pursuant to the September 12 order were invalid for failure to obtain a further extension of the July 12 warrant prior to the September 10 expiration (CPL 700.40) or to permanently inactivate the devices installed pursuant to the July 12 warrant (CPL 700.35, subd. 2). The defendants further move to suppress evidence seized pursuant to the search warrants as fruits of the foregoing alleged violations (CPL 710.20, subds. 1, 2, 4).

VIDEO SURVEILLANCE

In People v. Teicher, 52 N.Y.2d 638, 439 N.Y.S.2d 846, 422 N.E.2d 506, the Court of Appeals held that "the standards announced in Berger and Katz 347, 88 S.Ct. 507, 19 L.Ed.2d 576] are applicable with equal force unconsented video electronic surveillance." (52 N.Y.2d at 654-655, 439 N.Y.S.2d 846, 422 N.E.2d 506.) The Court left open the question whether, under appropriate circumstances, video surveillance may be conducted without a warrant consistently with Fourth Amendment principles. (52 N.Y.2d at p. 650, n. 1, 439 N.Y.S.2d 846, 422 N.E.2d 506.)

Under the standards of Katz and its progeny, the beginning of any analysis of an alleged Fourth Amendment violation is whether the movant can claim a reasonable expectation of privacy in the invaded area. (Katz v. United States, supra, 389 U.S. at p. 353, 88 S.Ct. at p. 512; see Rakas v. Illinois, 439 U.S. 128, 143, n. 12, 99 S.Ct. 421, 430 n. 12, 58 L.Ed.2d 387 ). The Court of Appeals has held that "a party to the conversation consents to its recording ... the constitutional privacy rights of other participants are not implicated" and no eavesdropping warrant is required. (People v. McGee, 49 N.Y.2d 48, 59, 424 N.Y.S.2d 157, 399 N.E.2d 1177 Similarly, the court has held that a third party, who shares an interest in the target premises equal to that of the person against whom the search is directed, may "permit an official inspection of such premises and that this authority is not circumscribed by any 'reasonable expectation of privacy' belonging to co-occupants" (People v. Cosme, 48 N.Y.2d 286, 292, 422 N.Y.S.2d 652, 397 N.E.2d 1319 ). Stated otherwise, "an individual who does not possess exclusive authority and control over premises has no reasonable expectation of privacy with respect to those premises" (id. at p. 291, 422 N.Y.S.2d 652, 397 N.E.2d 1319).

Applying these general principles to the instant facts, the court finds that the common hallway in which the camera was situated was an area under the joint control of the defendants and their landlord. The landlord's agent, therefore, had authority to permit official surveillance of this common area without the tenants' knowledge and, indeed, over the tenants' objection. (See People v. Hailstock, 54 Misc.2d 952, 955-956, 283 N.Y.S.2d 492 see, also, United States v. Abel, 548 F.2d 591, 592 cert. den. 431 U.S. 956, 97 S.Ct. 2678, 53 L.Ed.2d 273 The use of a video camera to record from and in a common area what could otherwise be seen by the unaided eye did not elevate the intrusion to constitutional dimension (United States v. Kim, 415 F.Supp. 1252, 1258 United States v. Lace, 502 F.Supp. 1021, 1041 State v. Okubo, 3 Haw.App. 396, 651 P.2d 494, 504 see, also, People v. Price, 54 N.Y.2d 557, 563, 446 N.Y.S.2d 906, 431 N.E.2d 267 United States v. Knotts, 460 U.S. 276, 283-285, 103 S.Ct. 1081, 1086-1087, 75 L.Ed.2d 55 ).

The court has reviewed the descriptions in the log of video surveillance and finds that the object of surveillance was events in the common hallway. To the extent the camera provided a partial view into the defendants' premises when the door was opened, the court finds that this interior view was no more than could have been observed by a casual passerby on the way to one of the other businesses adjoining the hallway. (See, e.g., State v. Dickerson, 313 N.W.2d 526, 531-532 [cases collected therein].)

The videotapes are accordingly admissible as evidence within constitutional bounds.

EAVESDROPPING

I

The defendants first contend that the offenses designated in the eavesdropping warrant are not crimes for which such warrant may lawfully issue pursuant to Federal legislation (18 U.S.Code § 2516, subd. 2). The cited section limits the states' authority to eavesdrop to instances "when such interception may provide or has provided evidence of the commission ... of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in ... dangerous drugs, or other (felonies) dangerous to life, limb, or property" designated by the State's eavesdropping statute. There is no doubt that the Criminal Procedure Law authorizes eavesdropping to obtain evidence of the designated offenses of Criminal Possession of Stolen Property in the first and second degree (Penal Law §§ 165.45, 165.50) and of Usury in the first and second degree (Penal Law §§ 190.40, 190.42). However, "examination of New York's wiretapping provisions reveals that the range of crimes in which electronic interception is permitted is much more encompassing than the Federal standard would seem to admit" and to that extent "runs afoul of the Supremacy Clause (U.S. Const., art. VI, cl. 2)" (People v. Shapiro, 50 N.Y.2d 747, 763-764, 431 N.Y.S.2d 422, 409 N.E.2d 897 ).

The court must determine, therefore, whether the offenses under consideration are crimes serious enough in the judgment of Congress, as reflected in the statute and legislative history, to warrant investigation by...