62 Misc. 2d 1065 | Buffalo City Court | 1970
This is a motion for an order suppressing certain evidence obtained by intercepting telephonic communications pursuant to a warrant granted by the Hon. William Gr. Heffron, County Court Judge on or about the 9th day of September, 1969. The District Attorney of this county procured an eavesdropping warrant pursuant to title III of part "VT of the Code of Criminal Procedure (L. 1968, eh. 546). That pursuant to said code, the warrant stated that it “ shall apply to the person of one Joe Lombardo at number 183 Ken-ville Road, Apartment 1 C ’ and 1084 Parkside Avenue, Buf
‘ ‘ The type of conversations authorized to be intercepted is the placing of bets in violation of the Penal Law and conversations by Joe Lombardo with others relating to lay-offs of bets already made with him. ”
‘ ‘ The crime to which this warrant relates is promoting gambling in the 1st degree and possession of gambling records in the 1st degree.”
On the 7th day of October, 1969, an order of renewal was granted pursuant to the application made by the District Attorney, Michael F. Dillon, predicated upon the attached affidavit of Detective Octavio D. Derrico. On the 17th of October, 1969, an information sworn to by Joseph J. Dragonette was laid against the defendant Helen Szymanski “that at the City of Buffalo, County of Erie on or about the 6th day of October 1969, one Helen Szymanski of 489 Grant Street in the City of Buffalo did promote gambling in the second degree when she knowingly advanced gambling activity, in that acting other than as a player said defendant, Count I, did, on October 6,1969 while at 491 Grant Street the Pastime Grill in the City of Buffalo, phone a professional bookmaking office, and forward bets or wagers on horse races, said bets or wagers being those of members of the public, and not said defendants own. Count II, Did on October 4, 1969 while at 491 Grant Street in the City of Buffalo the Pastime Grille phone a professional bookmaking office, and forward bets or wagers on horse races said bets or wagers being members of the Public and not those of said defendant. All in Violation of 225.05 P. L.”
The question before the court is whether the interception of the telephonic communications of the defendant not named in the warrant was lawfully obtained and thereby not violative of the Fourth Amendment of the United States Constitution. Subsequent to Berger v. New York (388 U. S. 41) striking down the New York Eavesdropping Law as unconstitutional on its face, the Legislature passed in 1968, sections 814 through 825 relating to issuance and return of eavesdropping warrants. The New York statute was stricken down primarily because it lacked the particularization of describing the place to be searched and the persons or things to be seized. The Legislature in attempting to remedy this, set out the requirements of form and content in section 819, and subdivision 3 thereof states ‘ ‘ a particular description of the person and the place, premises or telephone or telegraph line upon which eavesdropping may be conducted or have been approved and 4. A particular description of the
Therefore, it is the conclusion of this court that the failure of the District Attorney to comply with section 822 of the Code of Criminal Procedure requires the granting of the order of suppression.