125 Misc. 2d 754 | N.Y. Sup. Ct. | 1984
OPINION OF THE COURT
The defendants, husband and wife, have been indicted jointly on 51 counts for criminal usury (Penal Law,
The defendants move to suppress evidence obtained by the video surveillance upon the ground that no warrant was sought to authorize the surreptitious viewing; to suppress evidence obtained by the eavesdropping devices on the ground that usury is not an offense for which electronic surveillance is authorized by the Federal statute (US Code, tit 18, § 2516, subd [2]); and on the ground that interceptions pursuant to the September 12 order were invalid for failure to obtain a further extension of the July 12 warrant prior to the September 10 expiration (CPL 700.40) or to permanently inactivate the devices installed pursuant to the July 12 warrant (CPL 700.35, subd 2). The defendants further move to suppress evidence seized pursuant to the search warrants as fruits of the foregoing alleged violations (CPL 710.20, subds 1, 2, 4).
VIDEO SURVEILLANCE
In People v Teicher (52 NY2d 638, 654-655), the Court of Appeals held that “the standards announced in Berger [v New York, 388 US 41] and Katz [v United States, 389 US
Under the standards of Katz and its progeny, the beginning of any analysis of an alleged Fourth Amendment violation is whether the movant can claim a reasonable expectation of privacy in the invaded area. (Katz v United States, supra, at p 353; see Rakas v Illinois, 439 US 128, 143, n 12.) The Court of Appeals has held that “[w]hen a party to the conversation consents to its recording * * * the constitutional privacy rights of other participants are not implicated” and no eavesdropping warrant is required. (People v McGee, 49 NY2d 48, 59.) Similarly, the court has held that a third party, who shares an interest in the target premises equal to that of the person against whom the search is directed, may “permit an official inspection of such premises and that this authority is not circumscribed by any ‘reasonable expectation of privacy’ belonging to [the target] co-occupants” (People v Cosme, 48 NY2d 286, 292). Stated otherwise, “an individual who does not possess exclusive authority and control over premises has no reasonable expectation of privacy with respect to those premises” (supra, at p 291).
Applying these general principles to the instant facts, the court finds that the common hallway in which the camera was situated was an area under the joint control of the defendants and their landlord. The landlord’s agent, therefore, had authority to permit official surveillance of this common area without the tenants’ knowledge and, indeed, over the tenants’ objection. (See People v Hailstock, 54 Misc 2d 952, 955-956; see, also, United States v Abel, 548 F2d 591, 592, cert den 431 US 956 [owners consent to installation of beeper in rented airplane].) The use of a video camera to record from and in a common area what could otherwise be seen by the unaided eye did not elevate the intrusion to constitutional dimension (United States v Kim, 415 F Supp 1252, 1258 [binoculars on hallway]; United States v Lace, 502 F Supp 1021,1041 [same]; State v
The court has reviewed the descriptions in the log of video surveillance and finds that the object of surveillance was events in the common hallway. To the extent the camera provided a partial view into the defendants’ premises when the door was opened, the court finds that this interior view was no more than could have been observed by a casual passerby on the way to one of the other businesses adjoining the hallway. (See, e.g., State v Dickerson, 313 NW2d 526, 531-532 [Iowa] [cases collected therein].)
The video tapes are accordingly admissible as evidence within constitutional bounds.
EAVESDROPPING
I
The defendants first contend that the offenses designated in the eavesdropping warrant are not crimes for which such warrant may lawfully issue pursuant to Federal legislation (US Code, tit 18, § 2516, subd [2]). The cited section limits the States’ authority to eavesdrop to instances “when such interception may provide or has provided evidence of the commission * * * of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in * * * dangerous drugs, or other [felonies] dangerous to life, limb, or property” designated by the State’s eavesdropping statute. There is no doubt that the Criminal Procedure Law authorizes eavesdropping to obtain evidence of the designated offenses of criminal possession of stolen property in the first and second degree (Penal Law, §§ 165.45, 165.50) and of usury in the first and second degree (Penal Law, §§ 190.40,190.42). (CPL 700.05, subd 8, pars [b], [e].) However, “examination of New York’s wiretapping provisions reveals that the range of crimes in which electronic interception is permitted is much more encompassing than the Federal standard would seem to admit” (People v Shapiro, 50 NY2d 747, 764) and to that extent “runs afoul of the supremacy clause (US Const, art VI, cl 2)” (p 763).
What justifies the use of eavesdropping to investigate the possession of stolen property is the existence of a criminal organization or combination which facilitates the theft and the distribution of stolen goods. The organized receipt of stolen property from various sources over a considerable period of time is a circumstance “ ‘dangerous to * * * property’ ”. (United States v Tortorello, 342 F Supp 1029, 1035-1036, affd 480 F2d 764, cert den 414 US 866; see, also, United States v Tortorello, 480 F2d 764, 783, n 17; People v Seney, 34 NY2d 817; cf. United States v Grant, 462 F2d 28, 33.) Here it was demonstrated to the issuing Justices that the defendants had numerous sources of supply of valuable furs stolen by means including robbery. The recent decision of the First Department in People v Principe (102 AD2d 762, affg upon opn at Supreme Ct, NY County, 1983) is not to the contrary. The conduct at issue there was, according to the trial court, “the issuance of bogus operators’ licenses, auto registration and certificates of title.”
The court also finds that eavesdropping was properly employed in regard to the designated offense of usury, upon the present facts. Authority to prospectively intercept conversations regarding usury was not obtained until August 8, after numerous conversations pertinent to that crime were overheard in the course of executing the warrant in regard to the fencing operation. Among the conversations thus intercepted was a conversation on July 29, among the defendants and “Rick” who described how a friend of his, “Mike,” had been shot in the back and killed the previous day. It appeared from the conversation that “Mike” owed defendants $5,000. During the conversation, Sylvia Winograd stated, “He must of done something wrong, he must owe somebody money.” Joseph Winograd subsequently arranged to collect Mike’s $5,000 debt from Rick. As the repayment schedule was being arranged, Rick stated “as long as you don’t kill me” to which Sylvia Winograd replied, “Right, okay. I’ll tell my office what happened.” It appears that the defendants, at minimum, did not disabuse Rick of the possibility that he would be
ii
Defendants further contend that once the authority to intercept under the August 11 extension of the warrant was permitted to expire on September 10, no further interception was lawful under the statute (People v Gallina, 95 AD2d 336). In Gallina (supra), an eavesdropping warrant, as extended, was permitted to lapse for a period of six days before any application for a further extension was made. After the six-day hiatus, during which the eavesdropping device was apparently temporarily deactivated, a further extension was obtained and eavesdropping resumed for the maximum 30-day period and an additional 30-day extension. The government was unable to offer any explanation.
The court in Gallina (supra, p 343), despite its reference to the statutory “ ‘bright line’ ” of extension prior to expiration, clearly suggests that a delay in obtaining such extension beyond the period of authorization may be excusable upon appropriately exigent circumstances. This construction is consistent with the Federal Statute (United States v Gigante, 538 F2d 502, 507-508). There is no requirement in the Federal law, however, that an extension be obtained prior to expiration of the original authorization (US Code, tit 18, § 2518, subd [5]). This discrepancy in statutes suggests that our State Legislature intended to apply a more exacting standard in this regard. (See, e.g., United States v Marion, 535 F2d 697, 702; People v Washington, 46 NY2d 116, 122.) In light of the Federal cases upholding the Federal statute, the discrepancy does not appear to be of constitutional dimension, however. Nonetheless, a purely statutory violation may warrant suppression where the violated provision “directly and substantially implement[s] the [legislative] intention to limit the use” of eavesdropping (United States v Giordano, 416 US 505, 527) or plays “a central, or even functional, role in guarding against unwarranted use” of electronic surveillance (United States v Chavez, 416 US 562, 578). Gallina {supra), apparently permits a circumstantial analysis of the role played by the temporal provision of the extension requirement. (Cf. Scott v United States, 573 F Supp 622, 627 [five Circuit Courts of Appeals apply Giordano standard circumstantially].)
If the failure to obtain an extension of the July 12 warrant, as extended, prior to September 10 were held to be a statutory violation warranting suppression, the court finds that there were no fruits of the violation, since no conversations were intercepted during the period between expiration of the August 11 extension and issuance of the September 12 warrant (cf. People v Meranto, 86 AD2d 776). The conversations upon which the September 12 warrant issued were lawfully obtained. (See United States v Ricco, 421 F Supp 401, 404, n 3.) The order authorizing interception prospectively from September 12 was also lawful, in accordance with the applicable statutory criteria (CPL 700.15, 700.20; see People v Arnau, 58 NY2d 27, 33-34). The September 16 search warrant and the seizure of guns and stolen furs pursuant to the October 29 search warrant for Thrifty Fashions were also based upon information derived independently of any electronic surveillance under the September 10 warrant or extension thereof (People v Arnau, supra).
The motion to suppress is denied.
[Portions of opinion omitted for purposes of publication.]
It is important to recall that coercion is not an element of usury under our State statutes (Penal Law, §§ 180.40, 190.42) and that the applicable standard is statutory, i.e., whether eavesdropping “may provide * * * evidence of the commission of [a] crime dangerous to life, limb, or property” under the circumstances of commission (US Code, tit 18, § 2516, subd [2]; emphasis added). The standard is applicable under the supremacy clause (US Const, art VI, cl 2) and is not an aspect of the probable cause requirement of the Fourth Amendment (US Const, Amdt IV).