Siegel v. People

• Decision Date: 30 December 1965
• Citation: 266 N.Y.S.2d 386,16 N.Y.2d 330
• Parties: , 213 N.E.2d 682 Hyman D. SIEGEL, Appellant, v. PEOPLE of the State of New York et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 386

266 N.Y.S.2d 386

16 N.Y.2d 330, 213 N.E.2d 682

Hyman D. SIEGEL, Appellant, v. PEOPLE of the State of New York et al., Respondents.

Court of Appeals of New York.

Dec. 30, 1965.

Matthew H. Brandenburg, New York City, for appellant.

Frank S. Hogan, Dist. Atty. (Raymond S. Hack and H. Richard Uviller, New York City, of counsel), for respondent.

BURKE and SCILEPPI, Judges.

The order of this court granting leave to appeal should be vacated. An ex parte application for an order for eavesdropping is criminal in nature (Code Crim.Proc., § 813-a). It always has been the rule that unless there is a provision in the Code of Criminal Procedure permitting an application in connection with, or an appeal from, an order of a criminal nature, no review may be had. There is, of course, no provision in the Code of Criminal Procedure which allows an application to be made to the Appellate Division in connection with any such orders. Therefore, the Appellate Division had no jurisdiction to entertain in the first instance the application addressed to the orders for eavesdropping under CPLR 5704 (subd. (a)). As this is a criminal matter, under our Constitution and statutes relief cannot be authorized by that section. The Appellate Division should have dismissed the proceeding rather than have denied relief. The petitioner having been indicted now may move to suppress evidence illegally secured (Code Crim.Proc., § 813-c; CPLR 4506).

The appellate courts as a matter of first impression may not intervene in the course of an investigation where, as here, orders were obtained, a judicial officer had already determined the propriety of the methods sought to be used by the law enforcement agency, and there exist adequate means of review of that determination. For if the appellant's premises were the subject of an eavesdrop order he is protected, as a citizen, by the requirements of section 813-a, and as a defendant in a criminal case he is protected by statute (CPLR 4506) and Constitution (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)).

DESMOND, Chief Judge (dissenting).

This appeal was properly allowed by us. It brings to us the important and as yet undecided question as to what are the discovery rights of a citizen who learns, or has good reason to believe, that his office or home is being eavesdropped (and wire tapped) pursuant to a secret ex parte order. The petition was addressed to the Appellate Division. The court unanimously and without opinion denied relief. In granting petitioner leave to appeal we necessarily treated the petition as one commencing a civil special proceeding.

Petitioner's allegations may be summarized thus: he is an attorney maintaining a law office in New York City; he believes that his office space has been subjected to electronic eavesdropping by respondent District Attorney the basis for such belief being information received from a named person described as an expert in the field who discovered the installation in the office of 'direct wired eavesdropping devices', information from one of petitioner's office associates, an attorney, indicating the eavesdropping of conversations in the office and statements made to clients of petitioner and stenographic transcripts of an examination of several witnesses in a civil suit. This is, therefore, not a case where a citizen merely harbors suspicions of eavesdropping or wire tapping and comes into court to have his suspicions confirmed.

The petition alleges that these eavesdropping installations were contrary to various provisions of the Federal and State Constitutions and statutes including the provisions of the New York State Constitution relating to due process of law, unreasonable search and seizure and self incrimination. Relief was demanded as follows: that the District Attorney file an answer admitting the existence of the eavesdrops and giving the text of any court order authorizing them or that he be ordered by the court to disclose to petitioner the order and the affidavits on which it was granted and that the court make such other directions as may be just and proper including vacatur under CPLR 5704 (subd. (a)) of any order permitting an eavesdropping at petitioner's premises.

The District Attorney filed no answering pleading with the Appellate Division but apparently submitted to the court a brief urging that on various grounds the petition be denied.

First, we have a question of procedure arising, primarily, because the application was directed not to the Supreme Court but to the Appellate Division. We need not go so far (see 1 Carmody-Wait, New York Practice, pp. 186-187) as to hold that the Appellate Division has all the original powers given to the Supreme Court by law. The heading of the petition indicates that it is brought pursuant to CPLR article 4 and CPLR 5704 (subd. (a)) indicating the petitioner's theory that he is either instituting a civil separate special proceeding or moving the Appellate Division (5704, subd. (a)) to vacate an ex parte order made by a Supreme Court Justice. Subdivision (a) of 5704 seems to carry the same general meaning as sections 66 and 132 of the former Civil Practice Act which said that the Appellate Division or a Justice thereof may 'vacate or modify * * * any order * * * of the supreme court' or a Justice thereof granted 'without notice to the adverse party.' The eavesdropping order (and wire-tapping order), if there be any such in existence, must have been granted without notice under section 813-a of the Code of Criminal Procedure, and kept secret from the occupant of the premises. 5704 (subd. (a)) is so general and sweeping in language that it should be available for vacatur of any ex parte order. This is particularly true since if that section be not available there is no New York statute providing any relief for a citizen who learns that his premises had been 'bugged'. It is significant that in enacting 5704 (subd. (a)) the Legislature dropped out one clause in old section 132 of the Civil Practice Act which had bestowed the vacating power as to any order 'in an action or special proceeding'. Subdivision (a) of 5704, much more broadly stated, applies to 'any order of the supreme court or a justice thereof' which has been granted ex parte.

Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, held that eavesdropping by means of a physical intrusion of electronic devices into private premises is a violation of the Fourth Amendment (similarly, Clinton v. Virginia, 377 U.S. 158, 84 S.Ct. 1186, 12 L.Ed.2d 213). It would seem (see Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; Matter of Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d 425, 146 A.L.R. 1422) that for transgressions of the Constitution, perpetrated by the State itself, there must be a remedy. It is no answer at all to suggest that petitioner who (so says the District Attorney's brief) has been indicted for a crime must await trial and then object to the admission of the evidence obtained secretly. (Under current decisional law the objection would be overruled (see People v. Pugach, 16 N.Y.2d 504, 260 N.Y.S.2d 444, 208 N.E.2d 176).) Unless there be some discovery granted here, the scope and bearing of the eavesdropped information meanwhile remains unknown. Can it be that a citizen must tolerate a continuing and unconstitutional invasion of his premises until comes the day, if ever, when eavesdropped evidence is offered against him in open court?

There should at least be a judicial inquiry as to whether material...