People v. Fonville

247 A.D.2d 115, 681 N.Y.S.2d 420, 1998 N.Y. App. Div. LEXIS 10339
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 2, 1998
StatusPublished
Cited by22 cases

This text of 247 A.D.2d 115 (People v. Fonville) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Fonville, 247 A.D.2d 115, 681 N.Y.S.2d 420, 1998 N.Y. App. Div. LEXIS 10339 (N.Y. Ct. App. 1998).

Opinion

OPINION OF THE COURT

Denman, P. J.

Defendants, Tracy R. Fonville and Dorian D. Batchelor, each appeal from a judgment of Supreme Court convicting each, following a joint trial, of criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1]), criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]), conspiracy in the second degree (Penal Law § 105.15), criminal possession of a controlled substance in the seventh degree (two counts) (Penal Law § 220.03) and criminally using drug paraphernalia in the second degree (three counts) (Penal Law § 220.50 [1], [2], [3]). Fonville was sentenced to 22 years to life and Batchelor was sentenced to 25 years to life.

Defendants argue that the judgments must be reversed, certain evidence suppressed, and the indictment dismissed on several grounds, of which we need consider only three. We conclude that all eavesdropping evidence, and all tangible evidence derived therefrom, should be suppressed because of the failure of the applicants to show the necessity for the eavesdropping warrants, and because the eavesdropping warrant [117]*117applications contained material falsehoods and omissions relating to the issue of necessity (see, CPL 700.15 [4]; 700.20 [2]). Additionally, the eavesdropping evidence seized pursuant to the Walker and Batchelor warrants, and tangible evidence seized pursuant to the search warrant issued on June 9, 1994, after the obligation to seal the tapes arose, should be suppressed because of the failure to seal the tapes immediately (see, CPL 700.50 [2]). Consequently, the judgments of conviction should be reversed, the motions to suppress the intercepted communications and tangible evidence granted, and the indictment dismissed.

BACKGROUND

Defendants and their accomplices were indicted for multiple drug offenses in June 1994. The indictment resulted from a State Police investigation that began in April 1994 and culminated in June 1994. The investigation proceeded generally through the following stages: investigation into the activities of Nicholas Buster and associates between April 20 and April 25, 1994; eavesdropping on Buster’s telephone pursuant to a warrant issued on April 26, 1994 and amended on May 6, 1994; eavesdropping on the telephone of Samuel Walker (also known as Samuel Harris) pursuant to a warrant issued on May 10, 1994 and amended on May 19, 1994; eavesdropping on Batchelor’s telephone pursuant to a warrant issued on May 24, 1994; physical surveillance of Buster, Harris, Andre Thompson, Fonville and Batchelor in New York and Florida throughout May and early June 1994; the arrest of Batchelor at the Buffalo Airport at 12:45 p.m. on June 6, 1994; the seizure of drug packaging material from his luggage pursuant to a warrant issued on June 5; the arrest of Fonville at the airport later that day; the seizure of cocaine from her luggage pursuant to a warrant issued on June 5; the arrest of defendants’ accomplices, including Walker, later on June 6; the seizure of tangible evidence from 64 Brunswick Boulevard pursuant to a warrant issued on June 6; and the subsequent seizure of tangible evidence from 216 Summer Street pursuant to a warrant issued on June 9, 1994.

The convictions for first and third degree possession stemmed from the seizure of 1.5 kilograms of cocaine from Fonville’s luggage. The convictions for seventh degree possession stemmed from the seizure of smaller amounts of cocaine and heroin from 216 Summer Street. The convictions for using drug paraphernalia stemmed from the seizure of dilutants, glassine envelopes, [118]*118and a scale from 216 Summer Street. The convictions for conspiracy were supported by, among other evidence, the contraband and other items seized pursuant to the search warrants and the incriminating conversations intercepted pursuant to the eavesdropping warrants.

THERE WAS AN INSUFFICIENT SHOWING OF NECESSITY FOR ISSUANCE OF THE EAVESDROPPING WARRANTS; FURTHER, THE APPLICATIONS CONTAINED FALSEHOODS AND MATERIAL OMISSIONS CONCERNING THE NECESSITY FOR THE WIRETAPS.

Defendants’ first two challenges to the eavesdropping warrants are interrelated. Defendants challenge the sufficiency of the showing of necessity in the applications for the initial Buster eavesdropping warrant and its amendment; for the initial Walker eavesdropping warrant and its amendment; and for the Batchelor eavesdropping warrant.

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Bluebook (online)
247 A.D.2d 115, 681 N.Y.S.2d 420, 1998 N.Y. App. Div. LEXIS 10339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fonville-nyappdiv-1998.