Ruskin v. Safir
| Decision Date | 18 June 1998 |
| Citation | 177 Misc.2d 190,676 N.Y.S.2d 451 |
| Parties | , 1998 N.Y. Slip Op. 98,376 Thomas RUSKIN, Petitioner, v. Howard SAFIR, as Commissioner of the Police Department of the City of New York, Respondent. |
| Court | New York Supreme Court |
Herrick & Feinstein, L.L.P. (James A. Moss and Michael G. Albano, N.Y., of counsel), for petitioner.
Michael D. Hess, Corporation Counsel of New York City (Jeffrey S. Dantowitz, N.Y., of counsel), for respondent.
This is a motion for a preliminary injunction seeking to suppress under CPLR 4506 certain testimony at an administrative hearing. Because the Court finds that the conditions for obtaining such a preliminary injunction have been met, the Court grants the motion.
Howard Ruskin, a detective of the New York City Police Department for the past 8 years and a member of that Department for over 15 years, is currently the object of Police Department Disciplinary Proceedings seeking severe sanctions up to and including expulsion. An administrative hearing has been temporarily stayed by this Court pending this decision.
An individual named Gary Lowery sold allegedly illegal discounted airline tickets from his home in Louisiana. The transactions were usually recorded by telephone. Despite petitioner Ruskin's instruction to Lowery to use a stationary corded phone, Lowery continued to use his cordless phone while defendant Ruskin used a corded phone. At some point, a neighbor of Lowery's intercepted and recorded Lowery's telephone transactions. He brought the recordings to the FBI, which registered him as a paid informant and directed him to continue his surveillance. These warrantless interceptions and recordings eventually reached the conversations with Detective Ruskin. Lowery was eventually arrested. Ruskin claims that in order to obtain a lighter sentence, Lowery has agreed "to testify that everyone of his customers had known that the tickets they were buying were obtained fraudulently from the airlines." Detective Ruskin was indicted in the Louisiana District Court for violation of the Federal Constitution and laws. The Louisiana District Court suppressed the recordings but the Circuit Court of Appeals reversed and remanded, reasoning that even though Ruskin had told Lowery not to use a cordless phone, because Ruskin knew that Lowery was using such a phone, he had no reasonable expectation of privacy.
Immediately after Ruskin's indictment, the current disciplinary proceeding was brought against him by the New York City Police Department. Faced with the Louisiana District Court's decision on the scheduled date of the disciplinary hearing, the prosecutor announced that he intended to call four witnesses at the trial: Lowery, FBI Agent Wescott,
Ramona Ridge, a former customer of Lowery, who introduced Detective Ruskin to him and a case officer from the Internal Affairs Bureau who has been monitoring the Federal criminal action.
Ruskin's preliminary injunction motion, as well as the underlying proceeding seeks to suppress these tape recordings as the fruits of the violation of CPLR 4506 which prohibits the introduction into evidence of illegally recorded wiretaps. 1 The respondent Police Commissioner counters that Ruskin has no standing to invoke CPLR 4506 because (1) the information regarding these witnesses was obtained from wiretaps other than those of Ruskin's conversations, and (2) these wiretaps were not illegal under Louisiana Law where they took place.
Preliminarily, it is noted that Ruskin had to bring this motion before this Court. Under CPLR § 4507, where, as here, no eavesdropping warrant has been issued, a motion must be made before a Justice of the Supreme Court of the district where the hearing is being held to suppress such evidence. CPLR 4506 states in pertinent part:
§ 4506. Eavesdropping evidence; admissibility; motion to suppress in certain cases.
1. The contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law, may not be received in evidence in any trial, hearing or proceeding before any court or grand jury, or before any legislative committee, department, officer, agency, regulatory body, or other authority of the state, or a political subdivision thereof; provided, however, that such communication, conversation, discussion, or evidence, shall be admissible in any civil or criminal trial, hearing or proceeding against a person who has, or is alleged to have, committed such crime of eavesdropping.
2. As used in this section, the term "aggrieved person" means:
(a) A person who was a sender or receiver of a telephonic or telegraphic communication which was intentionally overheard or recorded by a person other than the sender or receiver thereof, without the consent of the sender or receiver, by means of any instrument, device or equipment; or
(b) A party to a conversation or discussion which was intentionally overheard or recorded, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment; or
(c) A person against whom the overhearing or recording described in paragraphs (a) and (b) was directed.
3. An aggrieved person who is a party in any civil trial, hearing or proceeding before any court, or before any department, officer, agency, regulatory body, or other authority of the state, or a political subdivision thereof, may move to suppress the contents of any overheard or recorded communication, conversation or discussion or evidence derived therefrom, on the ground that;
(a) The communication, conversation or discussion was unlawfully overheard or recorded; or
(b) The eavesdropping warrant under which it is overheard or recorded is insufficient on its face; or
(c) The eavesdropping was not done in conformity with the eavesdropping warrant.
Whether in a situation such as this the law of the forum applies or the law where the event took place remains an open question at the Appellate level. Our Court of Appeals has addressed this issue without deciding it.
While the law may be clear as to wiretaps authorized and recorded within the boundaries of this state ... where interception of a telephone conversation originating in People v. Capolongo, 85 N.Y.2d 151, 160, 623 N.Y.S.2d 778, 782-783, 647 N.E.2d 1286 (1995).
New York is accomplished on foreign soil, by foreign authorities pursuant to foreign law, what application does our State law have when New York prosecuting authorities later seek to introduce that evidence in a New York Court? Our statutory scheme is silent on this point
Nevertheless, there is a very strong public policy favoring the maintenance of privacy rights of citizens of this state and the deterrence of conduct infringing upon those rights. While the Court of Appeals has not ruled on this issue it has commented on it.
... Our strong public policy of protecting citizens against the insidiousness of electronic surveillance by both governmental agents and private individuals (CPLR 4506), CPL Art. 700; People v. Liberatore, 79...
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Doe v. Smith
...of CPLR § 4506 are applicable to the disciplinary proceeding as to which petitioner seeks suppression. See Ruskin v. Safir, 177 Misc.2d 190, 676 N.Y.S.2d 451 (S.Ct.N.Y. Co.1998) order vacated, appeal dismissed on other grounds 257 A.D.2d 268, 692 N.Y.S.2d 356 (1st Dep't 1999). As petitioner......
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Doe v. Smith
...provisions of CPLR§4506 are applicable to the disciplinary proceeding as to which petitioner seeks suppression. See Ruskin v Safir, 177 Misc 2d 190 (S. Ct. NY Co. 1998) order vacated, appeal dismissed on other grounds 257 AD2d 268 (1st Dep't 1999). As petitioner contends, he has standing to......