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Issue in this Case is Whether Evidence is Admissible

A New York Criminal Lawyer said that, defendant was an executive of several corporations engaged in the distribution and operation of coin-operated equipment whose enterprises reached into four of the five boroughs of New York City as well as Nassau and Suffolk Counties. In recent years his business ventures grew and prospered to such an extent that the self-appointed ‘family’ of sharers in the prosperity of honest businessmen determined that the time had come for him to share his wealth–‘to give up a piece’ of his business. Sometime during the early part of June, 1964 a concerted effort was commenced to extort $25,000 from him as well as a 25% Share of his business interests. As the arrangement was explained to him, ‘If at the end of (a) week you have $1 left, (we) take 25 cents and you keep 75 cents.’ Defendant, unmoved by the ‘family’s’ generosity and shaken by an assault on his wife by certain members of the ‘family’, described to him as ‘animals’, contacted the Nassau County police.

A New York Criminal Lawyer said that during the month of June the police, with the consent of defendant through the use of wiretaps and bugs, recorded numerous conversations of him and one individual known to his ‘family’ and ‘animals’. These recordings clearly established the existence of an extortion conspiracy on the part of another individuals and others. As defendant’s adamance persisted through June, the ‘family’ apparently became more anxious. On the morning of June 30, 1964 defendant’s daughter, then pregnant and residing in Plainview, received a call which, from its contents, could only have been made by one of the ‘animals.’ The daughter was advised that ‘if your father doesn’t cooperate we’ll come and kick your pregnant belly in.’ With this threat to the family of defendant, the District Attorney’s office determined that it could best protect him and his family and determine precisely who was responsible for the threats by recording the telephonic communications made by the other individuals and from several bars which they frequented and from which they had previously communicated with him.

A Nassau County Criminal Lawyer said that, in a petition and affidavit filed pursuant to section 813–a of the Code of Criminal Procedure, an assistant district attorney of Nassau County asked for a court order to make the necessary wiretaps. In testimony made under oath the assistant district attorney related, with particularity and detail, the events which had transpired.

The order issued by the Justice in compliance with the provisions of section 813–a recited the particular telephone numbers involved as well as their locations and went on to order ‘that under and pursuant to the provisions of Article I, Section 12, of the Constitution of the State of New York and the statutes relating thereto, and under and pursuant to the provisions of Section 813–a of the Code of Criminal Procedure of the State of New York and the statutes relating thereto, the District Attorney of Nassau County and the Assistant District Attorney of Nassau County, and any and all persons employed or assigned to the control and direction of the District Attorney of Nassau County and the said Assistant District Attorney be, and they hereby are, authorized and empowered to intercept and record all telephone communications made by and to the conspirators and any and all other persons communicating by both incoming and outgoing calls over the telephone located at 255 West 43rd Street, New York County, New York, now designated as 121 LW 4–2523 and by whatsoever number the said telephone and telephone line may be hereafter designated’. The order was to be effective from July 1, 1964 until August 29, 1964.

A Staten Island Criminal Lawyer said on the evening of July 3 and morning of July 5 during the course of the tap made on the telephone located at the Headline Bar, there were recorded conversations between the conspirator and the defendant-appellant in this action,. The conversations clearly and beyond any reasonable doubt implicated the defendant as a co-conspirator who had supplied the other individual with detailed information regarding the operation of defendant’s business enterprises. In addition both conversations involved discussions of what should be done in light of his intransigence. The defendant to his credit appears to have been against terrorizing him.

A Nassau Harassment Lawyer said that, on July 15, 1964 the conspirators were arrested, and on July 16, 1964 defendant-appellant was arraigned on an indictment charging him with coercion, attempted extortion, and conspiracy to commit extortion, assault second degree and burglary second degree. The defendant was convicted, after a trial by jury, of all but the latter two crimes. At the trial and over the objection of defense counsel the transcripts of wiretap recordings made on July 3 and 5 were admitted into evidence. Alleging, among other things, that the admission of this evidence was reversible error, the defendant appealed to the Appellate Division (Second Department). The court unanimously affirmed his conviction. The defendant appeals to this court by permission of the Chief Judge.

The issue in this case is whether the evidence presented is admissible in the court of law.

The defendant argues on this appeal that the Supreme Court 1987 case, struck down as unconstitutional on its face the very statute which authorized the wiretap order and therefore the evidence seized pursuant to that order was erroneously admitted. The defendant urges, in addition, that all wiretap evidence should be held to be inadmissible because the seizure and divulgence of the evidence constitutes a violation of section 605 of the Federal Communications Act.

In the said case, a case which involved the admissibility of evidence obtained by the use of a bugging device, the Supreme Court struck down section 813–a of the Code of Criminal Procedure. The statute read as follows: ‘An ex parte order for eavesdropping as defined in subdivisions one and two of section seven hundred thirty-eight of the penal law may be issued by any justice of the supreme Court or judge of a county court or of the court of general sessions of the county of New York upon oath or affirmation of a district attorney, or of the attorney-general or of an officer above the rank of sergeant of any police department of the state or of any political subdivision thereof, that there is reasonable ground to believe that evidence of crime may be thus obtained, and particularly describing the person or persons whose communications, conversations or discussions are to be overheard or recorded and the purpose thereof, and, in the case of a telegraphic or telephonic communication identifying the particular telephone number or telegraph line involved. In connection with the issuance of such an order the justice or judge may examine on oath the applicant and any other witness he may produce and shall satisfy himself of the existence of reasonable grounds for the granting of such application. Any such order shall be effective for the time specified therein but not for a period of more than two months unless extended or renewed by the justice or judge who signed and issued the original order upon satisfying himself that such extension or renewal is in the public interest. Any such order together with the papers upon which the application was based, shall be delivered to and retained by the applicant as authority for the eavesdropping authorized therein. A true copy of such order shall at all times be retained in his possession by the judge or justice issuing the same, and, in the event of the denial of an application for such an order, a true copy of the papers upon which the application was based shall in like manner be retained by the judge or justice denying the same.’

At the time the wiretap order in the case at bar was issued, there were no Federal constitutional restraints on the securing of wiretap evidence. The Supreme Court had steadfastly adhered to its decision, that wiretapping, accomplished without a trespass into a person’s home or other premises, does not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. Indeed, to this day Olmstead has not been squarely repudiated by the Supreme Court. The Constitution and the laws of this State, however, place severe restraints on the right of public officials to obtain evidence by wiretapping. In 1938 the people of this State ratified section 12 of article I of the State Constitution. That amendment provides: ‘The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence or crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.’

Section 813–a of the Code of Criminal Procedure quoted earlier and section 738 of the former Penal Law, Consol.Laws, c. 40, supplemented the provisions of the Constitution and extended them to all eavesdropping evidence obtained by ‘instrument’ without the consent of one of the parties to the conversation.

It is true that the order did not adequately specify the precise conversations which were sought–although the testimony of the assistant district attorney under oath, which becomes part of the order, did; that the order was not sufficiently limited in time–although there is no evidence that the execution of the order exceeded a reasonable period and the actual conversations seized came within a limited period of three days; that no exigent circumstances were alleged for dispensing with the notice requirement–although, under Supreme Court decisions defining ‘exigent circumstances’, those circumstances were present here; and that there was no return on the warrant–although we presume, since the defendant did not argue otherwise, that a return was made. The reason for these defects is obvious–there has been no previous decision outlining the necessity for those requirements which Berger found to be mandatory. Under these circumstances, a reversal of the conviction would not be warranted either under the decisions of this court or the Supreme Court.

The defendant argues, however, that the very interception of the telephonic communication violates Federal law and that ‘At this time when the people of this state and country are being called upon to reaffirm their allegiance to the rule of law, it is a complete farce for the courts, prosecutors and police of this state to sanction such criminal behavior.’

This argument is not without merit. If the issue were as simple as he suggests, a reversal would surely be mandated. Do we not, however, sanction criminal conduct and promote disrespect for law when we allow a man who is clearly guilty, who is convicted on the basis of evidence obtained in conformity with the strictest standards of the Constitution, to go free and menace the security of law-abiding citizens? This is not to say that the ends justify the means and that proof of guilt sanctions violations of constitutional rights. But when the sole justification for the exclusion of evidence is that its admission will sanction criminal conduct and promote disrespect for law, we are obligated to consider whether the more desirable result will flow from excluding the evidence.

Under these circumstances we decline to hold that wiretap evidence obtained in substantial compliance with the strictest provisions of the Constitution of the United States and of this State must be excluded in criminal prosecutions in this State.

We conclude by noting that, as a result of our construction of the statute, the people of this State are afforded greater protection against all forms of electronic eavesdropping, including that which involves no trespass whatever, than even the decisions of the Supreme Court have provided. Yet much as we might like, we cannot ignore the realities of life. We cannot ignore the rise of organized criminal activity and ‘families’ who promise to provide the true ‘big brothers’ of 1984. As the facts in this case reveal, some intrusion under the most severely regulated and restricted conditions are necessary, lest the only security we enjoy is that from government intrusion.

Accordingly, the court held that the judgment appealed from should be affirmed.

If you think that the evidence presented against you in a criminal case is inadmissible, seek the help of a Nassau Assault Attorney and Nassau Criminal Attorney at Stephen Bilkis and Associates.

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