People v. Barbosa

49 A.D.3d 1233, 853 N.Y.2d 758

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 2008
• Docket: Appeal No. 1
• Status: Published

Opinion

Memorandum: In each appeal, the People appeal from an order granting those parts of defendants’ respective omnibus motions seeking to suppress all evidence obtained as a result of eavesdropping warrants (see CPL 450.20 [8]; 450.50 [1]). We affirm. As County Court properly determined in granting those parts of the motions, the applications submitted in support of the eavesdropping warrants failed to establish that “normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous to employ” (CPL 700.15 [4]; see People v Viscomi, 113 AD2d 76 [1985], lv denied 67 NY2d 658 [1986]). Here, the record establishes that the police resorted to wiretapping even though “the effort expended by the police was minimal” prior to applying for the eavesdropping warrants (People v Candella, 171 AD2d 329, 332 [1991]; see People v Fonville, 247 AD2d 115, 121-122 [1998]), their investigation was of short duration (see Fonville, 247 AD2d at 122; Candella, 171 AD2d at 332), and there was a lack of demonstrated impediments to further “normal investigative procedures” (CPL 700.15 [4]; see Candella, 171 AD2d at 332-333; Viscomi, 113 AD2d at 77-78). Present-Scudder, PJ., Hurlbutt, Lunn, Pine and Gorski, JJ.