People v. Pecoraro

58 A.D.2d 462, 397 N.Y.S.2d 60, 1977 N.Y. App. Div. LEXIS 12429
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 8, 1977
StatusPublished
Cited by11 cases

This text of 58 A.D.2d 462 (People v. Pecoraro) 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. Pecoraro, 58 A.D.2d 462, 397 N.Y.S.2d 60, 1977 N.Y. App. Div. LEXIS 12429 (N.Y. Ct. App. 1977).

Opinion

Titone, J.

The defendant appeals from a judgment of the Supreme Court, Kings County, rendered November 30, 1976, convicting him, upon a plea of guilty, of the crime of perjury in the first degree, and sentencing him to five years’ probation. The issue before this court relates to the denial of the defendant’s motion to suppress certain eavesdropping evidence. The defendant’s claim that the sealing of taped conversations was not "immediate”, as required by CPL 700.50 (subd 2), is raised by alternative arguments. One of his contentions is that there was a statutory duty upon the People to seal the tapes at the conclusion of the initial 30-day period set forth in the eavesdropping warrant itself, and again at the expiration of the 30-day period set forth in each of the three extension orders. In his alternate argument, the defendant asserts that (assuming sealing is required only after the expiration of the last extension order) an unexplained seven-day delay between the expiration of the last extension order and the sealing requires suppression of the tapes in dispute.

THE FACTS

In September, 1972 an investigation was commenced into unlawful gambling in Suffolk County. Through the use of court ordered wiretaps, leads were furnished which culminated in a series of wiretaps being installed at various locations in Kings and Queens Counties. As a result of this electronic surveillance, approximately 500 individuals, including the defendant, were subpoenaed to appear before a Kings County Grand Jury. Thereafter approximately 150 men and women were indicted for various crimes, including gambling and perjury.

[464]*464Subsequently, a number of the defendants, although named in separate indictments, joined for the purpose of an evidentiary hearing challenging the legality of the wiretaps. The challenge which concerns this appeal is the claim that certain of the tapes should have been suppressed on the ground that they were not timely sealed pursuant to CPL 700.50 (subd 2). The hearing before Criminal Term involved about 31 wiretap orders, pursuant to which thousands of hours of conversations among hundreds of individuals over a period extending more than one year were monitored.

The wiretap orders were divided into 13 plants. Each plant represented a separate telephone number and location. A number of extensions of the original wiretap orders were obtained for several • of the plants (see CPL 700.40). The wiretap relevant to the defendant was designated plant 7. The original order creating plant 7 was signed on October 19, 1973. Renewals of that order were obtained on November 17, 1973, December 18, 1973 and January 17, 1974, respectively. The expiration date of the last extension order was February 15, 1974. All of the tapes from plant 7 were sealed on February 22, 1974, seven days after the expiration of the last renewal order, and 97 days after the conclusion of the initial period set forth in the warrant itself.

THE LAW

The requirement in the State of New York for sealing recordings upon the expiration of an eavesdropping warrant authorizing such recordings is set forth in CPL 700.50 (subd 2) as follows: "2. Immediately upon the expiration of the period of an eavesdropping warrant, the recordings of communications made pursuant to subdivision three of section 700.35 must be made available to the issuing justice and sealed under his directions” (emphasis supplied).

The Federal statute on this subject (US Code, tit 18, § 2518, subd [8], par [a]), provides, in relevant part: "Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions” (emphasis supplied).

DETERMINATION OF CRIMINAL TERM

On the issue as to when the duty to seal the tapes arises, [465]*465Criminal Term concluded that it did not arise after the end of the 30-day period set forth in the original warrant, but, rather, after the expiration of the last extension order. With regard to the seven-day delay between the expiration of the last extension order, on Friday, February 15, 1974, and the sealing of all the tapes from plant 7 on Friday, February 22, 1974, Criminal Term took judicial notice that February 16, 17 and 18 constituted a three-day holiday weekend and that the next working day was Tuesday, February 19. In view of the fact that the tapes from plant 7 were sealed on the fourth working day after the termination of the wiretap, Criminal Term was of the opinion that the District Attorney had adequately explained the seven-day delay and, accordingly, that there had been substantial compliance with the statutory requirement for immediate sealing.

DETERMINATION ON APPEAL

The defendant argues that Criminal Term’s failure to consider the wiretap warrant issued for plant 7 on October 19, 1973, and the three subsequent extension orders, as separate warrants for sealing purposes was reversible error. I disagree. The pertinent language contained in CPL 700.50 (subd 2) requires that the sealing of tapes obtained either from "wiretapping” or "mechanical overhearing of conversation” (CPL 700.05, subd 1), be made "[immediately upon the expiration of the period of an eavesdropping warrant”. (Emphasis added.) Nowhere in such subdivision mandating sealing is there any reference to such procedure being employed after the expiration of an extension order. This, in my opinion, clearly demonstrates that the Legislature intended that the eavesdropping warrant encompass all extension orders for sealing purposes, rather than that each extension order be treated as a separate warrant or eavesdropping order. It should also be noted that CPL 700.50 (subd 2) uses the phrase "the period” rather than "a period” or "each period”. This manifestly shows an intent in this State to treat an eavesdropping order, or warrant, together with its extensions, as one continuous period for the purpose of the sealing requirements (see United States v Fury, 554 F2d 522).

A close analysis and juxtaposing of relevant statutes included under CPL article 700, entitled "Eavesdropping Warrants”, demonstrably supports the proposition that extension orders are but components of an eavesdropping warrant and [466]*466are issued for the purpose of continuing the life of such instrument to the conclusion of an investigation into suspected criminal activity. To be specific, "eavesdropping warrant” is defined as "an order of a justice authorizing or approving eavesdropping (CPL 700.05, subd 2; emphasis supplied). Under CPL 700.40, it is provided, inter alia, that "[a]t any time prior to the expiration of an eavesdropping warrant, the applicant may apply to the issuing justice, or, if he is unavailable, to another justice, for an order of extension [of the warrant]” (emphasis and bracketed matter supplied). Extensions of warrants authorizing electronic surveillance are authorized by this section (see United States v Grant, 462 F2d 28).

In a case decided simultaneously with this one, and involving the identical question as to sealing (People v Glasser, 58 AD2d 448), Mr. Justice Shapiro cites People v Simmons (84 Misc 2d 749, resettled 86 Misc 2d 737, affd 54 AD2d 624) in support of his argument that sealing is required after the expiration of the original and each extension order. However, as the following summary will reveal, the facts in Simmons in no way support the position taken by my colleague. According to Mr.

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Bluebook (online)
58 A.D.2d 462, 397 N.Y.S.2d 60, 1977 N.Y. App. Div. LEXIS 12429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-pecoraro-nyappdiv-1977.