Summary
upholding application of Bronx County District Attorney to tap phone located in New York County
Summary of this case from United States v. LillaOpinion
Argued March 27, 1979
Decided May 3, 1979
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOEL TYLER, J.
Bennett M. Epstein and Jacob R. Evseroff for appellant.
Mario Merola, District Attorney (Timothy J. McGinn, Alan D. Marrus and Steven R. Kartagener of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant, convicted upon a plea of guilty of perjury in the third degree (Penal Law, § 210.05), challenges the propriety of the denial of his motion to suppress certain conversations recorded by means of electronic surveillance, maintaining that the District Attorney lacked statutory authority to seek issuance of the wiretap orders. We reject this contention.
The conduct described in the affidavits submitted in support of these applications for eavesdropping warrants pursuant to CPL 700.10 (subd 1) had a sufficient nexus to Bronx County to authorize the Bronx County District Attorney's investigation and concomitant applications for the challenged electronic surveillance. The information supplied by the District Attorney revealed the existence of a scheme to affect the parole status of an inmate at Wallkill Correctional Facility. Subpoenaed telephone records indicated that a number of telephone calls had been made to correction officers at various facilities from the Rosedale Bar in Bronx County. One of the recipients of these calls, a correction officer at the Attica Correctional Facility, contacted by the District Attorney, informed the latter of a scheme to effect through bribery a transfer of a William "Red" Crabbe from Wallkill to Bedford Hills Correctional Facility. Agreeing to work with the District Attorney, the correction officer engaged in further discussion of Crabbe's parole status over the telephone with an individual by the name of John Prunty. Prunty, who was on parole for a homicide conviction in Bronx County, had been observed frequenting the Rosedale Bar, from which, as previously noted, telephone calls had been made to correction officers, including the call to the correction officer at Attica who agreed to work with the District Attorney.
In our view, these contacts with Bronx County were sufficient to permit the Bronx County District Attorney to investigate this on-going scheme involving such crimes as bribery, rewarding official misconduct and conspiracy. To effectuate this investigation, the District Attorney certainly had the authority, pursuant to CPL 700.10 (subd 1), to seek issuance of wiretap orders. We have examined the remainder of defendant's contentions and find them without merit.
The wiretap warrant in this case authorized the tapping of a telephone located at John Prunty's home in New York County in order to obtain evidence of bribery and related offenses allegedly committed in New York County. The application, however, was not made by the New York County District Attorney, but rather by the District Attorney of Bronx County. In my view this prosecutor was not the proper applicant and accordingly the evidence he obtained without lawful authority should be suppressed.
There is no doubt that the Bronx County District Attorney had no authority to prosecute the bribery offenses designated in the warrant. Indeed he readily concedes that "[a]s of the date of the application * * * there was no evidence that any of the acts constituting these crimes had occurred in Bronx County." Nevertheless he claims, and apparently the majority agrees, that although the information in the application did not "give rise to probable cause to `believe' that the crime is then or will be committed in" Bronx County, he should be held to be authorized to make the application and obtain the warrant because there was a "reasonable nexus between the object crime and * * * [Bronx] County."
The "reasonable nexus" is based entirely on telephone records indicating that on specific dates in the summer and fall of 1974 two phone calls were made from a phone located in a Bronx bar to certain telephone numbers listed as the private residences of correctional employees; one call for 2 minutes and the other for 15. One correctional officer allegedly stated that he received a call from Prunty on a "Friday night in September or October, 1974", but of course there is no indication where Prunty was when he made the call. The People, however, theorize that Prunty, who resided in New York County, could have made the call from the Bronx bar because, on occasion, he was one of the patrons observed at the bar. Thus the "reasonable nexus" to Bronx County is based on pure speculation. Significantly when the officer agreed to continue the conversations with Prunty he invariably called or, at least, reached Prunty at his home in New York County and not at the Bronx bar where Prunty was said to be a regular customer and presumably initiated the bribe offer. In sum, the Bronx District Attorney went to New York County to tap a phone in order to obtain evidence of a crime which he concededly could not prosecute, in the hope that it might ultimately disclose evidence of criminal acts committed in Bronx County by John Prunty who frequented a bar there.
Of all the investigative techniques available to the police wiretapping poses the gravest intrusion on the individual's privacy and constitutional rights. It is an extraordinary measure acceptable only in extraordinary situations, and subject always to close regulation by constitutional mandate (Berger v New York, 388 U.S. 41) and statutory prescription (see, e.g., US Code, tit 18, § 2510 et seq.; CPL 700.05 et seq.). At the heart of these restrictions is the requirement that a wiretap warrant can only be issued upon the application of certain designated public officials (US Code, tit 18, § 2516, subd [2]; CPL 700.05, subd 5; 700.10, subd 1). The majority's decision, requiring nothing more than a speculative interest on the part of the District Attorney — who concededly could not prosecute the offense designated in the warrant or even execute the warrant within the confines of his own jurisdiction — can only lead to an unpredictable proliferation of potential wiretap applicants, wholly at variance with the basic policy that access to wiretap orders be strictly limited to certain designated public officials.
Accordingly, I would grant the motion to suppress, reverse the conviction and dismiss the indictment.
Chief Judge COOKE and Judges JASEN, GABRIELLI and FUCHSBERG concur; Judge WACHTLER dissents and votes to reverse in an opinion in which Judge JONES concurs.
Order affirmed in a memorandum.