People v. Paluska

109 A.D.2d 389, 491 N.Y.S.2d 999, 1985 N.Y. App. Div. LEXIS 48248

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 18, 1985
• Status: Published

Opinions

OPINION OF THE COURT

Mahoney, P. J.

In January of 1983, investigators of the State Police were conducting an investigation of the trafficking of controlled substances in Chemung County. On January 28, 1983, April 21, 1983 and April 26,1983, one of the officers purchased controlled substances at the home of Dennis Brown in the Town of Horse-heads, Chemung County. Based on these purchases and an accumulation of other evidence, the police obtained an eavesdropping warrant for a telephone at the Brown residence on June 13, 1983. The warrant provided that the eavesdropping would commence as soon as praticable and would continue for a period of 30 days from the date of the commencement of interception. The police began interception at the Brown residence 10 days later, on June 23, 1983.

On July 2, 1983 and July 8, 1983, the police overheard telephone calls, in which defendant agreed to sell several hundred units of lysergic acid diethylamide (LSD) to Brown. Police officers also witnessed meetings between Brown and defendant on those dates at which the sales were consummated. On July 13, 1983, application was made to the County Court to amend the warrant issued on June 13, 1983. Apparently, the District Attorney took the position that since the interception of conversations under the original order dated June 13, 1983 did not commence until June 23,1983, it was not necessary to apply for an extension of the original order until 30 days from June 23, 1983. No tapes were delivered to County Court for sealing until July 22, 1983. The tapes were in the possession of either the State Police or the District Attorney from the dates on which they were recorded until July 22, 1983, at which time they were ordered sealed.

Defendant was subsequently indicted for the crimes of criminal sale of a controlled substance in the second degree and criminal sale of a controlled substance in the third degree. Defendant moved to suppress the tape recordings and statements. After a hearing, County Court denied the motion to suppress, holding that the eavesdropping warrant and. procedures pursuant thereto were proper. On April 7,1983, defendant pleaded guilty in Supreme Court to criminal sale of a controlled substance in the second degree. He was sentenced to an indeterminate term of imprisonment of three years to life. This appeal by defendant ensued. We reverse.

Both CPL 700.10 (2) and 700.30 (7) specify a 30-day outside durational limit on an eavesdropping warrant. While the statutory provisions do not clearly spell out whether the 30-day period begins to run on the date the warrant is issued or the date of the commencement of the interception, the policy of strictly construing eavesdropping statutes dictates that the period begins on the date of issue unless another date is specified in the warrant by the issuing court. A provision in the warrant that interception shall commence as soon as practicable is not specific enough to change the general rule that the 30-day period commences when the warrant is issued.

We are persuaded to that view because of CPL article 700, which was enacted in 1969 in response to the provisions of the Federal Omnibus Crime Control and Safe Streets Act of 1968 (18 USC § 2510 et seq.), which act was the congressional response to the decision of the Supreme Court in Berger v New York (388 US 41) that not only struck down as unconstitutional New York’s old scheme of eavesdropping regulation, but directed that any intrusion by eavesdropping be strictly limited so as to minimize the invasion of privacy necessarily associated with eavesdropping.

Here, County Court issued the eavesdropping warrant on June 13, 1983 and, therefore, the warrant should have expired by statutory mandate on July 12,1983 instead of July 22,1983, the date on which the warrant expired by its own terms. Although it is apparent that the actual interception of conversation fell within the 30-day period, thereby suggesting harmless error, the error in the warrant also influenced the date upon which the sealing requirement arose. Because the tapes were not sealed until July 22, 1983, nine days after the warrant expired by statutory mandate, the sealing requirement mandated by CPL 700.50 was violated. The Court of Appeals in People v Basilicato (64 NY2d 103, 116-117) stated that the statutory requirement that tapes made pursuant to an eavesdropping warrant be sealed under the direction of the Judge issuing the warrant “[immediately upon the expiration of the period” of the warrant (CPL 700.50 [2]) is not satisfied when there is no explanation at all for the days that elapsed between expiration of the warrant and sealing (supra, at p 116). Here, the prosecution not only offers no explanation for the nine days between expiration of the warrant and sealing on July 22,1983, it insists that the 30-day outside durational limit of the warrant did not commence to run until June 23, 1983, the date upon which the telephonic interception began.

Finally, we reject the prosecution’s contention that defendant failed to preserve this issue for review. Defendant moved, pursuant to CPL 710.20 (2), to determine the admissibility of the statements intercepted by means of the eavesdropping warrant. Although defendant did not advance the specific theory he now relies upon, he did sufficiently apprise County Court of his objections to the entire eavesdropping warrant. Thus, the challenge to the warrant was presented below and thereby preserved for review on appeal. Even if the issue was not preserved for review, we could exercise our power to address the issue in the interest of justice (CPL 470.15 [6] [a]).

Since it is not clear from the record that the People’s potential proof consists solely of eavesdropping evidence which must be suppressed, we are hesitant to dismiss the indictment at this stage. Therefore, upon vacating defendant’s plea of guilty, we remit the matter to Supreme Court.