People v. Vespucci

Feb 15, 1990
Versions:75 N.Y.2d 434
553 N.E.2d 965
554 N.Y.S.2d 417
1990 N.Y. LEXIS 229

Lead Opinion

OPINION OF THE COURT

Bellacosa, J.

Defendants challenge their convictions principally on the ground that the Director of the New York State Organized Crime Task Force (OCTF) lacks authority to be an applicant for eavesdropping warrants. They premise this argument on the assertion that the State statute (CPL 700.05 [5]), which expressly includes the Director of OCTF as a law enforcement officer authorized to apply for warrants, is inconsistent with and violative of its Federal enabling antecedent (18 USC § 2516 [2]). We conclude that there is no infirmity in the New York State statute or in its utilization to secure the challenged warrants obtained by OCTF’s Director in accordance with the valid State statute and procedures. We are also satisfied that the sealing requirements of CPL 700.50 (2) have been met on this record, and we therefore affirm the orders of the Appellate Division which had affirmed defendants’ convictions.

The most serious charges of which defendants were convicted were coercion and conspiracy. This culminated a lengthy and complex investigation by the OCTF into organized crime infiltration of the refuse-carting industry in Nassau and Suffolk Counties. A targeted victim of the criminal enterprise —a legitimate businessman — gave information in 1982 to the OCTF which triggered the specific investigation. Over the course of 13 months in 1982 and 1983, the OCTF uncovered the pervasive tentacles of organized crime in Long Island’s carting industry, networked by a conspiracy of bribery and violent activities. Indictments ensued and all but one of the defendants pleaded guilty to the charges against them. Defendant Finnerty went to trial and was also convicted.

The OCTF’s primary investigatory and evidence-gathering weapon was eavesdropping. Seven warrants were issued over the course of the probe. The OCTF Director applied for these eavesdropping warrants pursuant to CPL 700.05 (5), which provides: " 'Applicant’ [for an eavesdropping warrant] means a district attorney or the attorney general or if authorized by the attorney general, the deputy attorney general in charge of the organized crime task force” (emphasis added). Defendants contend CPL 700.05 (5) is invalid because the Federal statute does not allow this State criminal law official to be included among the few authorized applicants. Therefore, they urge the evidence, otherwise legally obtained with the warrants, was illegally obtained and should have been suppressed.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 "impose[s] upon the States the mjnimum constitutional criteria for electronic surveillance” (People v Shapiro, 50 NY2d 747, 762-763 [citations omitted.]; 18 USC §2510 et seq.). While a State may enact legislation more restrictive than the baseline protections allowed by this act, "any State law drawn more broadly * * * runs afoul of the supremacy clause (US Const, art VI, cl 2)” (People v Shapiro, supra, at 763 [citation omitted]). Title III limits those who may be applicants for court-authorized eavesdropping warrants to "[t]he principal prosecuting attorney of any State, or the principal prosecuting attorney of any subdivision thereof, if such attorney is authorized by a statute of that State” (18 USC § 2516 [2]). Defendants contend that the CPL 700.05 (5) authorization of "the deputy attorney general in charge of the organized crime task force” impermissibly broadens the literal letter and the overarching purpose of that threshold part of title III. We disagree.

Defendants argue that conferring applicant status for securing court-ordered eavesdropping warrants on this sole specialized statutory Deputy Attorney-General violates the Federal statute because it uses the definitive article "the” in qualifying a "principal prosecuting attorney”. Yet Congress was writing a generic enabling statute to cover the 50 widely varying official titles and chains of command in all the State jurisdictions. Also, countervailing congressional words and action elsewhere in the comprehensive Federal act and its legislative history support our rejection of this cramped construction: "State legislation enacted in conformity with this chapter should specifically designate the principal prosecuting attorneys empowered to authorize interceptions” (Sen Rep No. 1097, 90th Cong, 2d Sess, 1968, reprinted in 1968 US Code Cong & Admin News 2112, 2189 [hereinafter Senate Report] [emphasis added]). The multiplicity, albeit high-level, of permissible applicants intended by Congress is additionally manifested by 18 USC § 2516 (1), which lists six separate Federal prosecuting attorneys authorized to apply for eavesdropping warrants. Indeed, the statute enacted by Congress for the "State” (for title III purposes) of the District of Columbia permits the United States Attorney to "authorize * * * any investigative or law enforcement officer” to be an applicant (DC Code Annot § 23-546 [a]; see, Note, Significant Development, Electronic Surveillance — State Authorization of Wiretaps Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 56 BU L Rev 600, 606). We are further aided in our inquiry by this congressional admonition: "The important question [in determining valid applicants], however, is not name but function.” (Senate Report, at 2187). Congress, we therefore conclude, did not intend the straitjacketed implementation of this important legislation urged upon us by defendants-appellants and the dissenting opinion. Congress instead reflected a more realistic and flexible, though limited, high-level roster of applicants (see also, United States v Smith, 726 F2d 852, 857-858).

An overall goal of title III is "delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized” (Senate Report, at 2153). To this end, the specific mandate of 18 USC § 2516 (2) "provide[s] for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State” (Senate Report, at 2187). The essential question is whether the OCTF Director is precluded from qualifying as the "principal prosecuting attorney” within the language and meaning of 18 USC § 2516 (2). An examination of the purpose and function of the New York State OCTF and its Director’s responsibilities supports the view that this officer should not be written out of the New York State authorization statute, as that would ironically contradict the centralization objective of the Federal statute.

The proliferation-of-authorized-applicants hypothesis ad vanced by the dissent may be readily dispelled. In 1970, the New York State Legislature established a State-wide Organized Crime Task Force (Executive Law § 70-a). The stated reason for the creation of the OCTF is remarkably consonant with that underlying the enactment and the limitations of the Omnibus Crime Control and Safe Streets Act of 1968 (18 USC § 2516 [2]): to insure centralization and consistency in law enforcement against organized crime (see, Legislative Findings, L 1970, ch 1003, § 1 [3], [4]). The consolidation intent embodied in the State’s OCTF statute is further evidenced by the provision for the appointment of one special Deputy Attorney-General to the leadership responsibility for this whole field of endeavor. This officer, appointed by and serving at the pleasure of the Governor and Attorney-General (Executive Law § 70-a [2]), is thus publicly accountable generally and to them specifically as the State’s chief executive and highest elected law enforcement official. I can find no New York legislative trend creating State-wide special prosecutors enjoying the dual specific legislative mandate that the Director of the OCTF has (see, Executive Law § 70-a [2]; CPL 700.05 [5]). Indeed, the Governor’s formal Budget Message for 1990-1991 specifies an opposite trend: elimination of the Special Prosecutor for Corruption, in existence since 1972 (State Budget, at 103).

Another defense prong of attack is that a lack of "political accountability” should deprive the OCTF Director of eavesdrop warrant applicant status. Congress did express an intent that applicants "be limited to those responsive to the political process” (United States v Giordano, 416 US 505, 520). However, the purpose of this requirement is to ensure that "[sjhould abuses occur, the lines of responsibility lead to an identifiable person” (Senate Report, at 2185). The legislative scheme of New York’s Executive Law § 70-a, plus the requirement of authorization running to the Director from the regularly elected Attorney-General (CPL 700.05 [5]), have embodied in State law a sufficient assurance in this respect. Moreover, the Federal applicants enumerated in the Federal prosecutorial roster have no more political accountability than New York State’s OCTF Director (see, 18 USC §2516 [1] [which includes "any Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General” among authorized applicants]).

Some defendants also complain that the OCTF Director’s eavesdrop warrant application authority is derived from an "overbroad delegation” of the Attorney-General’s power. But the Director’s general authority is not "derived”; rather, it is separately secured through a State legislative grant (see, Executive Law § 70-a), as is the independent warrant application power (see, CPL 700.05 [5]; see also, Matter of B. T. Prods. v Barr, 44 NY2d 226, 232, n 1; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227, 230). The non-self-executing statutory status even requires a confirmatory express authorization from the Attorney-General, which was satisfied here by a letter from the Attorney-General to the Director. The designation and delegation is therefore not an abdication of responsibility, as has been argued, but a reinforced, checked and balanced, statutory and official conferral of appropriate authority. This is especially so under New York’s unconventional scheme where the Attorney-General is not traditionally or by statutory empowerment a general prosecuting official — which should be a sufficient answer to the dissent’s duplicativeness argument (Della Pietra v State of New York, 71 NY2d 792, 796-797).

The State and Federal statutes are specific and in harmony, and we therefore hold the New York applicant authorization statute valid. Our analysis in this respect is neither broadbrushed nor strained but quite straightforward. It is also buttressed by the failure of defendants to fulfill their burden of demonstrating the invalidity of CPL 700.05 (5) beyond a reasonable doubt (see, People v Pagnotta, 25 NY2d 333, 337). In sum, we uphold the invocation by the OCTF Director of his plain authority vested in that office under the State statute to secure the pertinent eavesdrop warrants; we find that statute consistent with the congressional enabling statute and intent; and we decide in consequence of those threshold determinations that the evidence garnered pursuant to court-ordered warrants was properly held admissible and not suppressible.

Defendants additionally claim, however, that the eavesdrop tapes and all other evidence derived from them should have been suppressed because of alleged noncompliance with the immediate sealing requirements of CPL 700.50 (2). In 6 of the 24 warrant expiration periods, tapes were not sealed "immediately”. On 5 of these 6 occasions, the period expired at midnight on a Saturday night and, in preexpiration meetings, the issuing Justice directed that the tapes be presented for sealing on the first business day after expiration. In the sixth instance, the prosecutor immediately presented the tapes for sealing but was informed by court officials of the issuing Justice’s unavailability at that particular moment. The prosecutor complied with the issuing Justice’s direction to return the next day and the tapes were then sealed.

While we relax none of the burdens initially placed on the People to explain a tape-sealing delay (People v Winograd, 68 NY2d 383, 394), we conclude on this record that the offered explanations satisfied that burden (see, People v Edelstein, 54 NY2d 306, 310). Both lower courts have so held, and we have no basis to conclude as a matter of law that the sealing requirement aspect of the statute was violated. People v Winograd (supra) offers little sanctuary to defendants because there the prosecutor knew in advance of the issuing Justice’s impending absence on the expiration date and the prosecutor made no alternative sealing arrangements in an effort to comply with the immediate sealing protection. Here, by contrast, the prosecutor in each instance made alternative arrangements in advance with court approval and directions, and sealing was accomplished "immediately” within the intendment of the statutory mandate. To rule otherwise would sacrifice substance for form and not advance the salutary and necessary purposes of the sealing protections in this statute (People v Ronning, 137 AD2d 43, 48-49, lv denied 72 NY2d 866).

The dissent’s disagreement with us on this point is particularly unavailing in view of the respect, not superseder, given People v Edelstein (supra) in People v Winograd (supra, at 394-395), which neatly and supportively harmonizes our recent relevant precedents.

Since the arguments raised do not render the affirmed judgments of conviction infirm in any cognizable respect, the orders of the Appellate Division should be affirmed.





Dissenting Opinion

Titone, J.

(dissenting). The majority’s decision to uphold the provision of CPL 700.05 (5) authorizing eavesdropping warrant applications by the Director of the Organized Crime Task Force (OCTF) is not supported by the language of the governing Federal statute (18 USC § 2516 [2]), the underlying statutory purpose or the relevant case law. Moreover, the majority’s broad-brush approach, which is based largely on the general crime-prevention goals of the two statutes and on an attempted analogy to the provisions governing warrant applications by Federal law enforcement officials, is flatly inconsistent with the "narrow reading” of the Omnibus Crime Control Act that we have previously adopted because of "our own sensitivity to the dangers inherent in electronic eavesdropping” (People v Shapiro, 50 NY2d 747, 764). Since I cannot subscribe to what I consider to be the majority’s strained efforts to uphold the challenged statute, I respectfully dissent.

Under the Omnibus Crime Control Act, only two classes of law enforcement officers may be designated by the States as proper applicants for court-authorized electronic eavesdropping warrants: the State’s "principal prosecuting attorney” and the "principal prosecuting attorney of any political subdivision [of the State]” (18 USC § 2516 [2]). The language is plain and unambiguous. Giving it its most natural reading, the statutory language denotes a single individual, more particularly the individual entrusted, by the State as a whole or by each of its political subdivisions, to oversee the People’s interest in the prosecution of crime. In the words of the Senate Report on the then-proposed statute, it was "the chief prosecuting officer of the State” that Congress had in mind (Sen Rep No. 1097, 90th Cong, 2d Sess, 1968, reprinted in 1968 US Code, Cong & Admin News 2112, 2187 [hereinafter Senate Report]). Although allowance was made for warrant applications by "the principal prosecuting attorney at the next political level of a State,” e.g., the county, the provision "d[id] not envision a further breakdown” (id.).

Thus, under both the unadorned statutory terms and the official explanation of how those terms were intended to be used, it is abundantly clear that Congress did not intend to permit the authority to apply for electronic eavesdropping warrants to be split between two different prosecuting officials both of whom operate at the State level of government. CPL 700.05 (5), which permits applications by either the State Attorney-General or the OCTF Director, who are both State-level prosecuting attorneys, is therefore not in conformity with 18 USC § 2516 (2) and, for that reason, cannot be sustained (see, People v Shapiro, supra).

The majority’s position is not advanced by its assertion that "under New York’s unconventional scheme * * * the Attorney-General is not traditionally or by statutory empowerment a general prosecuting official” (majority opn, at 441). Indeed, the "unconventional scheme” that the majority posits was expressly contemplated by the drafters of the Senate Report: "In most States, the principal prosecuting attorney of the State would be the attorney general. The important question, however, is not name but function. The intent of the proposed provision is to provide for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State. Who that officer would be would be a question of State law. Where no such office exists policymaking would not be possible on a statewide basis; it would have to move down to the next level of government. In most States, the principal prosecuting attorney at the next political level of a State, usually the county,, would be the district attorney, State’s attorney, or county solicitor. ” (Senate Report, at 2187 [emphasis supplied].) Thus, if the majority’s assertion were true, it would lead only to the conclusion that the Attorney-General is not a proper designee under 18 USC § 2516 (2). It certainly does not support the proposition that the OCTF Director, whose jurisdiction is even narrower than the Attorney-General’s, is fairly characterized as "the chief prosecuting officer of the State” or its functional equivalent (see, majority opn, at 439).

Even apart from the clear import of the statutory language and legislative history, it is apparent that CPL 700.05 (5)’s designation of the OCTF Director as a permissible applicant is inconsistent with the goals of the Federal act. Again, according to the Senate Report, "[t]he intent of the proposed provision [18 USC § 2516 (2)] is to provide for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State” (Senate Report, at 2187 [emphasis supplied]). The purpose of such centralization, in turn, was to "avoid the possibility that divergent practices might develop” (id., at 2185).1

Plainly, the concept of "centralizing” the authority to apply for eavesdropping warrants in a "chief prosecuting attorney” is inconsistent with allowing applications at the State level to be made by either the Attorney-General or the OCTF Director. Similarly, it is difficult to see how the goal of avoiding divergent practices may be reconciled with a State statute that permits decisions "in the area of the use of electronic surveillance” to be made in two separate offices having two separate sources of authority. In this regard, it is important to point out that although the OCTF Director operates nominally within the Attorney-General’s office, he is, as the Appellate Division noted below, "vested [with] the authority to act with relative independence in conducting investigations within his jurisdiction” (144 AD2d, at 54). Indeed, the Director’s own brief submitted on this appeal asserts that his power to investigate cases involving organized crime "is derived directly from the various provisions of section 70-a of the Executive Law [the enabling legislation], and not from delegation by the Attorney-General.” In light of the specialized mandate of the OCTF Director and the absence of direct accountability between the Director and the Attorney-General, it seems likely that the former’s priorities and policy choices will differ from those of the regular law enforcement officials within the latter’s office, leading to precisely the type of conflicting and "divergent” practices that Congress was seeking to prevent.2

The majority’s heavy reliance on the parallel provisions governing Federal warrant applications (majority opn, at 439) is also misplaced. It is true, as the majority notes, that 18 USC §2516 (1) authorizes warrant applications by a number of high-level Federal officials (see also, DC Code Annot § 23-546 [a] [including as permissible applicants the United States Attorney or any designated "investigative or law enforcement officer”]).3 However, the listed officials were selected by Congress specifically because there were "lines of responsibility lead[ing] to an identifiable person” (Senate Report, at 2185). Further, as noted by the United States Supreme Court, the listed officials, all appointed directly by the President of the United States, can fairly be said to be "responsive to the political process” (United States v Giordano, 416 US 505, 520). The same cannot be said about the OCTF Director, who is appointed jointly by both the Governor and the Attorney-General (Executive Law § 70-a [2]). Contrary to the majority’s assertion (majority opn, at 440), this system of joint appointment does not promote political accountability, but rather operates to insulate the OCTF Director from direct accountability to the political process precisely because it splits "the lines of responsibility” between two, separately elected appointing authorities.4

Finally, unlike the majority, I am not persuaded by the supposed consonance between the purpose of section 2516 (2) of the Federal Omnibus Crime Control and Safe Streets Act and that of New York State legislation creating the Organized Crime Task Force (Executive Law § 70-a). The purpose of the latter was to enhance the State’s law enforcement capabilities by centralizing law enforcement efforts in a particular class of cases, i.e., those involving organized crime, in a single prosecutorial entity (see, Legislative Findings, L 1970, ch 1003, § 1). The purpose of the former, in contrast, was to minimize the potential for prosecutorial abuse of electronic eavesdropping by centralizing the warrant application authority in a single, politically responsible official. The only point of commonality is that the statutes’ respective goals are to be accomplished through centralization. Such a superficial common ground is certainly not sufficient to bring CPL 700.05 (5) into compliance with the controlling Federal statute.

The implications of the majority’s reliance on the "centralization” factor are profound and disturbing. Because centralized administration of law enforcement is often considered more effective than local prosecutorial efforts, with their inherent boundary restrictions, there is a perceptible recent legislative trend toward creating specialized prosecutors, whose authority transcends local borders, to address particular types of crimes. Given this trend, the majority’s approval of the statutory provision at issue here creates a very real risk that in the future there will be a proliferation of special-interest prosecutors who are legislatively authorized to obtain electronic eavesdropping warrants. The office of the Special Narcotics Prosecutor for New York City, for example, has some of the same salient characteristics as the OCTF Director, in that it too was created because of a perceived need to "centralize” law enforcement efforts in an area of urgent concern, i.e., drug trafficking (see, Judiciary Law § 177-a). Further, like the OCTF Director, the Special Narcotics Prosecutor operates nominally within the office of a conventional prosecutorial authority (a District Attorney serving one of the counties within New York City), but is collectively appointed by — and therefore responsible to — several elected officials, namely, the District Attorneys of all five of the counties within New York City (Judiciary Law § 177-c). Under the majority’s rationale, these traits would seem to render the Special Narcotics Prosecutor as eligible for designation as a permissible eavesdropping warrant applicant as the OCTF Director.

In summary, as I read the language and published legislative history of 18 USC § 2516 (2), for State-level investigations, the States are limited to designating a single prosecutorial official, specifically, their chief prosecuting officers, to apply for electronic eavesdropping warrants. Permitting multiple designations at the State level of special-interest prosecutors such as the OCTF Director, whose functions are "centralized” by subject matter, is inconsistent with the Federal goal of centralizing the policy and practices "in the area of the use of electronic surveillance” without regard to the subject matter of the investigation (Senate Report, at 2187). For that reason, I conclude that CPL 700.05 (5)’s designation of the OCTF Director cannot be upheld under the doctrine of Federal preemption (see, People v Shapiro, supra).

While I would reverse and suppress all of the electronically acquired evidence primarily because of the OCTF Director’s reliance on an unconstitutional source of authority, I cannot help but comment on defendant’s other argument for suppression, i.e., the People’s failure to comply with the statutory sealing requirements (CPL 700.50). The majority has held that the delays in sealing here were acceptable not because of any reasonable excuse offered by the prosecutor, but rather because, in contrast to the circumstances in People v Winograd (68 NY2d 383), "the prosecutor [here] made alternative arrangements in advance with court approval” (majority opn, at 442). I cannot agree, however, that the statutory requirement of prompt sealing may be waived or dispensed with upon judicial approval (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 700.50, at 504 [distinguishing between issuing Judge’s broad discretion to require progress reports and mandatory nature of return and sealing requirements]). Plainly, People v Edelstein (54 NY2d 306), on which the majority relies, cannot be considered helpful in light of the limitations that were placed on that case’s significance in People v Basilicato (64 NY2d 103, 116-117) and People v Winograd (supra, at 389-395). Indeed, to the extent that Edelstein may be construed to permit delays in sealing occasioned solely by the issuing Judge’s unavailability, it has been superseded by the holding in Winograd, which required the People to "offer [an] explanation for their failure to have the supervising Justice transfer authority to an available Justice” (68 NY2d, at 394, supra). Whether permission or approval by the issuing Judge is a sufficient "explanation” is not answered by either Edelstein or Winograd. As a matter of common sense, however, it seems to me that if an unexcused prosecutorial delay in bringing tapes to be sealed would constitute a ground for suppression in a given case, a judicial directive permitting such delay would also be error necessitating suppression.

Accordingly, I dissent and cast my vote to reverse the orders of the Appellate Division and suppress the evidence obtained as a result of electronic surveillance.

Chief Judge Wachtler and Judges Simons, Kaye and Hancock, Jr., concur with Judge Bellacosa; Judge Titone dissents and votes to reverse in a separate, opinion; Judge Alexander taking no part.

In each case: Order affirmed.

Notes

. Contrary to the majority’s suggestion, the argument that the statute contemplates only one official at each level of local government does not turn on the drafters’ use of the definitive article "the” (majority opn, at 438). To the contrary, the very concept of "centralizing” authority, which figured so prominently in the drafters’ intentions, denotes a singular point of authority. I would also note that the majority’s own reliance on the grammatical construction that the Senate Report drafters used in urging that States should "specifically designate the principal prosecuting attorneys empowered to authorize interceptions” (Senate Report, at 2187 [emphasis supplied]; see, majority opn, at 439) is unavailing. Since 18 USC § 2516 (2) permits designation of "principal prosecuting attorneys” at both the State and political subdivision levels of government, the use of the plural term "principal prosecuting attorneys” is, in this context, hardly surprising. Certainly, it does not support the majority’s conclusion that more than one "principal prosecuting attorney” at the State level of government was contemplated.

. The majority relies, in part, on "the requirement of authorization running to the Director from the regularly elected Attorney-General” (majority opn, at 440). However, as the majority later acknowledges, once such authorization is received, the Director’s powers are "independent” and not "derived” (majority opn, at 441). Furthermore, the authorization contemplated by CPL 700.05 (5) is not given on a case-by-case or application-by-application basis. Rather, it is a blanket authorization empowering the OCTF Director to apply for electronic eavesdropping warrants in those cases falling within his statutory jurisdiction. Thus, the important discretionary decisions, such as when to make applications and how to administer the wiretapping program within his department are left to the Director, without regard to whether the underlying policies conflict with those followed in the investigative branch of the Attorney-General’s office.

. 18 USC § 2516 (1) provides that electronic eavesdropping warrant applications may be made by "[t]he Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General, any acting Assistant Attorney General or any [specially designated] Deputy Assistant Attorney General in the Criminal Division”.

. The split in the lines of accountability is particularly significant in our State, where the offices of Governor and Attorney-General have often been held by members of different political parties or by individuals with very different political viewpoints. Further, the independence of the New York State Attorney-General vis-á-vis the Governor is a well-known and long-standing tradition.