People v. Winograd

• Decision Date: 20 November 1986
• Citation: 509 N.Y.S.2d 512,502 N.E.2d 189,68 N.Y.2d 383
• Parties: , 502 N.E.2d 189 The PEOPLE of the State of New York, Respondent, v. Sylvia WINOGRAD, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 512

509 N.Y.S.2d 512

68 N.Y.2d 383, 502 N.E.2d 189

The PEOPLE of the State of New York, Respondent, v. Sylvia WINOGRAD, Appellant.

Court of Appeals of New York.

Nov. 20, 1986.

Malvina Nathanson, Brooklyn, for appellant.

Robert Morgenthau, Dist. Atty. (Beth D. Jacob and Norman Barclay, New York City, of counsel), for respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

On this appeal, we are called upon to determine whether the People have complied with the mandates of CPL article 700 in their conduct of a wiretap investigation. For the reasons that follow, we conclude that the People have failed to satisfy various statutory requirements and accordingly, the order of the Appellate Division affirming defendant's conviction must be reversed and a new trial ordered.

I

Defendant and her husband, who operated a furrier business in Manhattan, were suspected of conducting a fencing operation from their place of business. A police investigation ensued, in which numerous wiretaps and other surveillance techniques were utilized. An informant of demonstrated reliability passed ostensibly stolen fur pelts to an intermediary who, under police surveillance, apparently sold the pelts to the Winograds. This intermediary subsequently identified the Winograds as his fence, but refused to cooperate with the police any further.

The police, aware that the Winograds had previously been convicted of extortion, criminal usury and related crimes, sought and obtained permission from the landlord of the building where the Winograds maintained their place of business to install a video camera in the hallway opposite the doorway to defendant's establishment. For six weeks, police officers were able to observe the hallway area in front of the door and the immediate interior when the door was opened but were not able to overhear any conversations. Although the police observed people visiting the Winograds, some carrying fur pelts and some apparently delivering money to the Winograds, this investigative technique was considered inadequate to gather sufficient evidence for a successful prosecution.

On July 12, 1983, the New York County District Attorney, using information obtained from informants and the video surveillance, applied for and was issued an eavesdropping warrant authorizing interception of conversations inside the Winograd's place of business and in the hallway outside the place of business, concerning criminal possession of stolen property and conspiracy to commit that crime (wiretap No. 1). Even though the affidavit submitted in support of the warrant recited that an informant had exchanged fur pelts as collateral against a usurious loan transacted with the Winograds, the People did not seek authorization to intercept conversations relating to criminal usury. However, shortly after the wiretap was in place, the police intercepted conversations concerning usurious loans on July 14, 15, 18, 19, 20, 21, 22 and 29. Thereafter, on August 1, 1983, the District Attorney applied for an amendment to the eavesdropping warrant to preserve the conversations relating to criminal usury intercepted on July 14, 15, 18, 19 and 21. No effort was made at this time, however, to amend the warrant to permit prospective interception of conversations concerning usurious loans. One week later, however, on August 8, 1983, the District Attorney sought a further amendment to both preserve the conversations relating to criminal usury intercepted on July 20, 22 and 29 and to permit prospective interception of conversations regarding criminal usury.

On August 11, the warrant issued on July 12 and amended August 1 and August 8 was extended for 30 days (wiretap No. 2). On September 7, two days prior to the expiration of the warrant, the supervising Justice, who had been designated by the issuing Justice then on vacation to supervise execution of the warrant, informed the People that he would be unavailable for all purposes until September 12, due to religious observance. Thus, the tapes of the seized conversations authorized by the August 11 extension (wiretap No. 2) were not presented to a Justice for sealing until September 12 and in fact, were not sealed until September 13.

On August 26, the People obtained a warrant authorizing interception of conversations over the Winograd's business telephone relating to the crimes of criminal possession of stolen property, criminal usury and conspiracy to commit those crimes (wiretap No. 3). This warrant expired on Saturday, September 24, and the tapes were sealed on the following Monday, September 26.

The investigation continued throughout the fall. A new eavesdropping warrant was issued on September 12 and extended for an additional 30 days on October 11, and search warrants were issued on September 16 and October 29, based in part on information obtained through the July 12 eavesdropping warrant and the September 12 eavesdropping warrant as extended on October 11.

In October 1983, the Winograds ¹ were arrested and indicted for 51 counts of criminal usury (Penal Law § 190.42) and 16 counts of criminal possession of stolen property (Penal Law § 165.45). After defendant's suppression motion was denied without a hearing 125 Misc.2d 754, 480 N.Y.S.2d 419, she was convicted after a trial by jury of 45 counts of criminal usury and 11 counts of criminal possession of stolen property. Defendant was thereafter sentenced to concurrent indeterminate prison terms of 2 to 6 years on each usury count and 1 to 3 years on the stolen property counts and ordered to pay restitution in the amount of $42,950 on the usury counts and $1,955 on the stolen property counts as well as $43,000 in fines on the usury counts. On appeal from the judgment of conviction, which brought up for review the denial of defendant's motion to suppress the evidence derived from the eavesdropping warrants, the Appellate Division affirmed 114 A.D.2d 315, 494 N.Y.S.2d 593. The defendant has appealed by leave of a Judge of this court.

II

Defendant's initial ² argument that criminal usury is not a crime "dangerous to life, limb, or property" within the reach of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 2516), the Federal legislation which authorizes States to issue eavesdropping warrants, is patently meritless and requires no extended discussion. We only recently noted in People v. Principe, 65 N.Y.2d 33, 38, 478 N.Y.S.2d 463, 478 N.E.2d 979, that "it is logical to conclude that in the use of the singular in the 'catch-all' phrase 'or other crime dangerous to life, limb, or property' * * * Congress intended the word 'crime' to be construed generically and did not seek to unreasonably limit the power of a State Legislature to enact enabling legislation". In Principe, the record demonstrated the presence of an established and pervasive criminal operation involving the corrupt activities of public employees. Relying on our previous decision in People v. Shapiro, 50 N.Y.2d 747, 764, 431 N.Y.S.2d 422, 409 N.E.2d 897, we said that such an operation portrayed a well-organized criminal enterprise representing major offenses that are " ' "intrinsically serious or * * * characteristic of the operations of organized crime" ' " (People v. Principe, supra, 65 N.Y.2d at p. 38, 478 N.Y.S.2d 463, 478 N.E.2d 979, quoting People v. Shapiro, supra, 50 N.Y.2d at p. 764, 431 N.Y.S.2d 422, 409 N.E.2d 897, quoting Sen Rep. No. 1097, 90th Cong., 2d Sess, 1968 U.S.Code Cong. & Admin.News, at 2234), and concluded that court-ordered eavesdropping for evidence of forgery, larceny and related crimes was within the scope of the Federal eavesdropping authorization. So too here, where the defendant is accused of operating a well-organized criminal enterprise engaged in fencing furs and loansharking, intrinsically serious offenses characteristic of the operations of organized crime, we conclude that the designated offense of criminal usury (CPL 700.05) is within the reach of the Federal enabling legislation sufficient to authorize the eavesdropping warrants (People v. Principe, 65 N.Y.2d 33, 489 N.Y.S.2d 463, 478 N.E.2d 979, supra; cf. People v. Shapiro, 50 N.Y.2d 747, 431 N.Y.S.2d 422, 409 N.E.2d 897, supra ).

Defendant argues further that because the amendments to the warrant authorizing wiretap No. 1 seeking to preserve the previously intercepted conversations relating to criminal usury were not sought "as soon as practicable" (CPL 700.65) and because the People failed "upon the expiration of the period of eavesdropping warrant" to seal the tapes obtained from wiretaps No. 2 and No. 3 (CPL 700.50), the evidence deriving from those wiretaps should have been suppressed. We agree.

We have consistently emphasized that there must be strict compliance with the provisions of New York's eavesdropping statute (CPL art. 700) and that the burden of establishing such compliance rests with the prosecution (People v. Schulz, 67 N.Y.2d 144, 148-149, 501 N.Y.S.2d 12, 492 N.E.2d 120; People v. Gallina, 66 N.Y.2d 52, 57, 495 N.Y.S.2d 9, 485 N.E.2d 216; People v. Basilicato, 64 N.Y.2d 103, 485 N.Y.S.2d 7, 474 N.E.2d 215; People v. Washington, 46 N.Y.2d 116, 121-122, 412 N.Y.S.2d 854, 385 N.E.2d 593; People v. Sher, 38 N.Y.2d 600, 603-605, 381 N.Y.S.2d 843, 345 N.E.2d 314). Moreover, " 'the absence of compliance, the State officials lack authority to wiretap, and any interceptions they make are unlawful, and any evidence derived from the wiretap is inadmissible' " (People v. Schulz, 67 N.Y.2d 144, 149, 501 N.Y.S.2d 12, 492 N.E.2d 120, supra, quoting People v. Sher, 38 N.Y.2d 600, 604, 381 N.Y.S.2d 843, 345 N.E.2d 314, supra ).

The initial eavesdropping warrant, issued on July 12 (wiretap No. 1), authorized the interception of conversations concerning criminal possession of stolen property and conspiracy to commit that crime. However, as early as July 14, conversations were intercepted which concerned usurious loans, a crime not included in the initial...