New York Law Review

Tag: Eavesdropping

  • People v. Vaccaro, 93 N.Y.2d 531 (1999): Wiretap Warrant Validity After Phone Number Change

    People v. Vaccaro, 93 N.Y.2d 531 (1999)

    A wiretap warrant remains valid, and suppression of evidence is not required, when a telephone number specified in the warrant changes after the warrant is issued but before it is executed, provided the wiretap is installed on the only line serving the specified location.

    Summary

    This case addresses whether evidence obtained from a wiretap should be suppressed because the telephone number specified in the warrant changed between the warrant’s issuance and execution. The New York Court of Appeals held that suppression was not required because the warrant specified the address and the wiretap was placed on the only telephone line serving that address, even though the number had changed. The court emphasized that strict compliance with eavesdropping statutes does not require hyper-technical obedience and that the investigator followed the court’s mandate by tapping the correct line.

    Facts

    Police obtained a warrant to wiretap a phone line at the residence of Anthony Vaccaro’s grandfather, based on evidence Vaccaro was using the phone for drug trafficking. The warrant specified the phone number (315) 422-2003. Before the wiretap was installed, the phone number was changed to (315) 422-0084. An investigator, aware of the change, installed the wiretap on the line after confirming the new number was listed in the grandfather’s name. Intercepted communications led to the arrest of Vaccaro and Dana Darling on drug charges.

    Procedural History

    Vaccaro and Darling moved to suppress the wiretap evidence, arguing that tapping the new number without a new warrant application was illegal. The suppression court agreed, suppressing the evidence. The Appellate Division reversed, holding the warrant application satisfied statutory requirements despite the number change. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a wiretap warrant is invalid and requires suppression of evidence when the telephone number specified in the warrant changes after issuance but before execution, and the wiretap is installed on the only telephone line serving the specified premises.

    Holding

    No, because the warrant identified the premises with particularity, and the wiretap was placed on the only phone line serving that location, fulfilling the warrant’s intent despite the change in telephone number.

    Court’s Reasoning

    The court emphasized the need for strict compliance with New York’s eavesdropping statute (CPL Article 700), which mirrors federal standards derived from Berger v. New York and Katz v. United States. While strict compliance is crucial, it doesn’t demand hyper-technicality. The warrant application and warrant itself conformed to statutory requirements by listing the address and the phone number, which was the only number at that address. The court distinguished this case from People v. Basilicato, where the warrant authorized wiretapping but was used for bugging (intercepting oral communications). Here, the investigator executed the warrant’s intent by tapping the only phone line at the specified location. The court stated, “‘Strict compliance’ does not entail hypertechnical or strained obedience, nor is common sense its enemy.” The court concluded that the change in number did not affect probable cause or the warrant’s validity because the tap was placed on the correct line. The court focused on the lack of discretion given to the executing officer, contrasting it with situations where officers seize items not described in a warrant. The key was that the warrant’s objective – tapping the phone line at Vaccaro’s grandfather’s residence – was achieved without expanding the scope of the search or invading additional privacy interests. The court stated, “In the context of this case, the change in telephone number had no bearing on the established probable cause.”

  • People v. Martello, 93 N.Y.2d 645 (1999): Retroactivity of New State Law on Pen Registers

    People v. Martello, 93 N.Y.2d 645 (1999)

    A new rule of New York statutory law regarding the use of pen registers, which does not implicate federal constitutional principles, should be applied prospectively only, considering the purpose of the new rule, reliance on the old rule, and the effect on the administration of justice.

    Summary

    The New York Court of Appeals addressed whether its prior decision in People v. Bialostok, which required a warrant based on probable cause for pen registers capable of monitoring conversations, should be applied retroactively. Martello argued that evidence obtained through pen registers not meeting this standard should be suppressed. The Court held that Bialostok should be applied prospectively only, considering the purpose of the rule (deterrence, not fact-finding), law enforcement’s reliance on the prior standard, and the potential burden on the administration of justice. The Court also clarified that the enactment of CPL Article 705 after Bialostok further supported the prospective application.

    Facts

    Paul Martello, a union officer, was convicted of attempted coercion and criminal mischief based partly on evidence from electronic eavesdropping. The eavesdropping warrants were based on information from prior pen register surveillance conducted between 1990 and 1992. Martello sought to suppress the eavesdropping evidence, arguing the pen registers were capable of monitoring conversations and thus required a probable cause warrant under Bialostok. The People argued Bialostok should not be applied retroactively and that the pen register surveillance complied with CPL Article 705.

    Procedural History

    The Supreme Court denied Martello’s motion to suppress, holding that Bialostok applied prospectively only. The Appellate Division affirmed, agreeing that Bialostok should not apply retroactively to pen register orders issued before the decision. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the rule established in People v. Bialostok, requiring probable cause for pen registers capable of monitoring conversations, should be applied retroactively to cases pending on direct review.

    Holding

    1. No, because Bialostok is based on an interpretation of New York state statutory law (CPL Article 700), not the Fourth Amendment, and New York uses a flexible approach to retroactivity that considers the purpose of the new rule, reliance on the old rule, and the effect on the administration of justice.

    Court’s Reasoning

    The Court of Appeals determined that the issue was whether Bialostok was grounded in the Fourth Amendment (which would require retroactive application under Griffith v. Kentucky) or in New York state law. The Court found that Bialostok was based on the interpretation of CPL Article 700, focusing on statutory compliance rather than constitutional concerns. The Court emphasized that “[t]he issue [in the case was] not the reasonableness of the search but statutory compliance.”

    Analyzing the Pepper-Mitchell factors, the court found that Bialostok established a new rule by placing audio-capable pen registers under CPL Article 700. The court then considered:

    • Purpose of the rule: The rule served as a deterrent to unauthorized electronic eavesdropping and did not affect the determination of guilt or innocence.
    • Reliance on the old rule: Law enforcement extensively relied on the previous rule that a probable cause warrant was not required for pen register surveillance.
    • Effect on the administration of justice: Retroactive application would burden the administration of justice and affect many pending cases without serving as a deterrent or benefiting the truth-seeking process.

    The Court also noted the significance of CPL Article 705, enacted after the operative facts in Bialostok. This article defines “pen register” without excluding those capable of being converted into eavesdropping devices, and it excludes the use of pen registers authorized under Article 705 from the definition of “eavesdropping” in CPL 700.05(1). This evinced a legislative intent to treat all pen registers complying with CPL Article 705 as pen registers, not eavesdropping devices, regardless of their potential for modification.

  • People v. Gallina, 66 N.Y.2d 50 (1985): Strict Compliance Required for Wiretap Extensions and Evidence Sealing

    People v. Gallina, 66 N.Y.2d 50 (1985)

    Wiretap evidence is inadmissible if authorities fail to strictly comply with statutory requirements for obtaining extensions, inactivating devices, and sealing recordings.

    Summary

    This case addresses the level of adherence required to Criminal Procedure Law article 700 in wiretap investigations and the repercussions of non-compliance. The Court of Appeals affirmed the Appellate Division’s decision to suppress wiretap evidence due to inadequate compliance with statutory requirements. The court emphasized that applications for wiretap extensions must be made before the original warrant expires, eavesdropping devices must be fully inactivated during lapses in authority, and recordings must be promptly sealed. Failure to meet these requirements necessitates suppression of the evidence obtained.

    Facts

    Law enforcement obtained authorizations for multiple wiretaps during a heroin sales investigation at a meat market where the defendant worked. Wiretap three targeted two phones at the market. An extension was sought, resulting in wiretap four. After wiretap four ended, the equipment was turned off but remained in place, and the tapes were sealed with a delay. A further warrant led to wiretap five, followed by wiretap six. The tapes from wiretap six were also sealed with a delay. The delay in obtaining the extension for wiretap four was attributed to transcription and translation difficulties and a broken typewriter.

    Procedural History

    The trial court denied the defendant’s motion to suppress the wiretap evidence, leading to his conviction for criminal sale of a controlled substance. The Appellate Division reversed, granting the motion to suppress evidence from wiretaps two and five (and subsequent extensions), and ordered a new trial. The People appealed to the Court of Appeals.

    Issue(s)

    1. Whether an order extending a wiretap can be issued after the original wiretap order has expired?

    2. Whether merely turning off an eavesdropping device satisfies the statutory requirement of permanent inactivation during a lapse in wiretapping authority?

    3. Whether evidence obtained from a wiretap is admissible when the application for that wiretap was preceded by violations of the extension and inactivation provisions of the eavesdropping statutes?

    4. Whether a delay of almost two full business days in sealing wiretap recordings is excusable under CPL 700.50(2)?

    Holding

    1. No, because CPL 700.40 requires that an application for an extension order be made prior to the expiration of the original eavesdropping warrant.

    2. No, because permanent inactivation requires steps that would cut off the possibility of listening in on communications to or from the tapped premises, and simply turning off the equipment does not meet this standard.

    3. No, because the warrant authorizing the later wiretap depended on information obtained from the earlier wiretap which was the result of a direct violation of the extension application and inactivation statutes.

    4. No, because a delay of that length requires a satisfactory explanation, and inadequate police procedures do not constitute a valid excuse.

    Court’s Reasoning

    The Court reasoned that the clear language of CPL 700.40 mandates that extension applications be made before the original warrant’s expiration. The Court rejected the People’s argument to treat the extension application as a new, original application, emphasizing that this would circumvent the notice requirements of CPL 700.50(3). The Court also found that merely turning off the eavesdropping equipment did not satisfy the requirement of permanent inactivation, as it did not eliminate the potential for unauthorized eavesdropping. Regarding the admissibility of evidence from wiretap six, the Court found that the warrant authorizing it depended on information from wiretap five, which was obtained in violation of the extension and inactivation statutes. The Court emphasized that the extension and inactivation requirements reflect a policy of limiting the use of eavesdropping devices. Finally, the Court held that the delay in sealing the tapes violated CPL 700.50(2), as the People failed to provide a satisfactory explanation for the delay. The Court cited People v. Basilicato, 64 NY2d 103, 116 stating that “because of the potential for abuse, it is the People who must provide a satisfactory explanation for untimely sealing.”

  • People v. McGrath, 46 N.Y.2d 12 (1978): Admissibility of Consensual Eavesdropping Despite Employer Rules

    People v. McGrath, 46 N.Y.2d 12 (1978)

    It is not unlawful to eavesdrop on telephone conversations with the consent of one party, even if the consenting party is a government employee who may have acted contrary to their employer’s rules.

    Summary

    Defendant, a postmaster, was charged with aggravated harassment for making harassing phone calls to a co-employee. The co-employee, with the knowledge of other postal employees, recorded these conversations. The defendant moved to suppress these recordings, arguing they violated postal regulations. The trial court granted the motion, and the County Court affirmed. The New York Court of Appeals reversed, holding that consensual eavesdropping is permissible, irrespective of whether the consenting party violated their employer’s regulations. The court relied on existing penal law and the principle that evidence obtained in violation of internal agency rules is not necessarily inadmissible.

    Facts

    The defendant, McGrath, was the Postmaster of the Germantown Post Office. He made a series of telephone calls to a female co-employee both at the post office and at her home. These calls formed the basis of a charge of aggravated harassment under New York Penal Law § 240.30(1), alleging that McGrath intended to harass, annoy, threaten, or alarm the co-employee. The co-employee, with the knowledge and advice of fellow postal employees, recorded these telephone conversations.

    Procedural History

    McGrath was arraigned in Town Court. He moved to suppress the tape recordings of his phone calls. The Town Court granted the motion to suppress the recordings of calls completed at the post office, citing a violation of Postal Regulation 668.291. The County Court affirmed this decision. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether tape recordings of telephone conversations, made with the consent of one party but in potential violation of that party’s employer’s (Postal Service) regulations, are admissible in court.

    Holding

    No, because it is not unlawful to eavesdrop on telephone conversations with the consent of one of the parties, and the fact that the consenting party may have violated her employer’s rules does not render the evidence inadmissible.

    Court’s Reasoning

    The Court of Appeals grounded its decision in New York Penal Law § 250.00 and Criminal Procedure Law § 700.05(3), which permit eavesdropping with the consent of one party to the conversation. The court also cited Rathbun v. United States, 355 U.S. 107, to support the principle of permissible consensual eavesdropping. The court addressed the argument that the postal employee’s actions violated Postal Regulation 668.291, which prohibits employees from recording or intercepting communications without the consent of all parties involved. The court, citing United States v. Caceres, 440 U.S. 741, held that a violation of internal agency regulations does not automatically render evidence inadmissible. The Court emphasized that the key factor was consent from one party to the conversation, irrespective of any potential violation of internal employer rules. The Court stated: “It is not unlawful to eavesdrop on telephone conversations with the consent of one of the parties to the conversation (Penal Law, § 250.00; CPL 700.05, subd 3; Rathbun v United States, 355 US 107), nor is the tape recording evidence in this case to be excluded because the consenting party, who was a government employee, may have acted contrary to the rules of her employer (see United States v Caceres, 440 US 741).” There were no dissenting or concurring opinions noted.

  • People v. Shapiro, 50 N.Y.2d 747 (1980): Severance and Prosecutorial Misconduct

    People v. Shapiro, 50 N.Y.2d 747 (1980)

    A trial court abuses its discretion when it denies severance of indictments involving numerous counts of sex crimes from indictments involving promoting prostitution, especially when the prosecutor intimidates defense witnesses with perjury charges.

    Summary

    Elliot Shapiro was convicted of promoting prostitution, endangering the welfare of a minor, and multiple counts of sodomy. The Court of Appeals reversed, holding that the trial court abused its discretion by consolidating indictments, as the sheer number of sodomy counts prejudiced Shapiro’s defense against the prostitution charges. The court also found prosecutorial misconduct where the District Attorney repeatedly and unqualifiedly warned defense witnesses that they would be prosecuted for perjury if their testimony favored Shapiro, effectively depriving him of his right to compulsory process. Finally, the court ruled that the eavesdropping orders were invalid as they exceeded the bounds of the federal wiretapping statute.

    Facts

    Shapiro was charged with multiple counts of sodomy over 17 months with eight underage boys (Indictment No. 143). He was also charged with promoting prostitution and endangering the welfare of a minor based on a single incident on January 31, 1974, when police found him and another underage boy nude in his home, along with other adults and underage boys (Indictment Nos. 117 and 118). The police obtained evidence for the latter indictments through court-ordered wiretapping. Shapiro claimed he was merely a patron, not a promoter, of prostitution.

    Procedural History

    Shapiro was convicted in the County Court, Westchester County. The Appellate Division affirmed the conviction but modified the sentence. Shapiro appealed to the New York Court of Appeals, arguing improper joinder of indictments, prosecutorial misconduct, and invalid eavesdropping orders.

    Issue(s)

    1. Whether the trial court abused its discretion by consolidating Indictment No. 143 (multiple sodomy counts) with Indictment Nos. 117 and 118 (promoting prostitution and related charges).
    2. Whether the District Attorney’s warnings to defense witnesses regarding perjury violated Shapiro’s due process rights.
    3. Whether the eavesdropping orders exceeded the bounds of the federal wiretapping statute.

    Holding

    1. Yes, because the multiplicity of sodomy counts in Indictment No. 143 carried an almost irresistible potential for prejudicing Shapiro’s defense against the charges arising out of the January 31, 1974, incident.
    2. Yes, because the District Attorney’s repeated and unequivocal warnings to the witnesses effectively deprived Shapiro of his right to compulsory process.
    3. Yes, because the state law, as applied to authorize wiretaps for crimes not involving force or danger to life or limb, contravened the requirements of section 2516 of the federal statute.

    Court’s Reasoning

    The Court reasoned that the joinder of the indictments was prejudicial because the numerous sodomy counts created an inference of indiscriminate propensity, unfairly impacting the defense against the promoting prostitution charges. The court highlighted the lack of physical evidence of sodomy with one of the boys found in Shapiro’s home during the police raid. Furthermore, the prosecutor’s intimidation of defense witnesses by threatening perjury charges violated Shapiro’s due process rights. The court emphasized that the witnesses sought assurance against prosecution for inconsistencies in prior testimony, not immunity for false statements at Shapiro’s trial. The court cited Webb v. Texas, stating that substantial interference by the State with a defense witness’ free and unhampered choice to testify violates due process. Finally, the court found that the eavesdropping orders were invalid because they exceeded the scope of permissible state regulation under the federal wiretapping statute (18 U.S.C. § 2516(2)). The court noted that the federal statute limits wiretapping authorization to major offenses involving harm or the substantial threat of harm to the person, and that New York’s statute was broader than federal law. The court emphasized that, while the state’s interest in criminalizing participation with minors in prostitution or sexual abuse is compelling, the wiretaps here were for crimes not involving the use of force or danger to life or limb, thus violating federal law. The Court stated, “The provisions of title 3 do more than codify bare constitutional requisites; they manifest a Congressional design to protect the privacy of wire and oral communications by confining State authorization for eavesdropping by wiretap to what in Congress’ view are appropriate and compelling circumstances”.

  • People v. Brenes, 42 N.Y.2d 41 (1977): Minimization Requirement in Wiretap Orders

    42 N.Y.2d 41 (1977)

    When executing a wiretap order, law enforcement must make a good-faith, reasonable effort to minimize the interception of communications unrelated to the crime under investigation, and a failure to even attempt minimization warrants total suppression of all intercepted conversations.

    Summary

    The New York Court of Appeals addressed the minimization requirement in wiretap orders. The police obtained an order to wiretap Miguel Brenes’ phone during a narcotics investigation but recorded all 743 calls over 20 days, including clearly irrelevant conversations with children and attorneys. The Court held that the failure to make any effort to minimize the interception of nonpertinent conversations required total suppression of all intercepted communications, emphasizing that authorities must make a good faith effort to avoid intercepting irrelevant conversations, especially where easily implemented procedures are available.

    Facts

    The New York City police obtained an eavesdropping order for Miguel Brenes’ phone as part of a narcotics investigation. The order named Brenes as the target and included a minimization directive. Police installed a tap on Brenes’ phone in his apartment. The tap operated continuously, 24 hours a day, for 20 days, recording all 743 conversations. Even conversations in Spanish were recorded and later translated. Numerous innocent calls involving children, attorneys, and other uninvolved parties were intercepted and recorded. The supervising Assistant District Attorney admitted to losing control of the case after the order was obtained.

    Procedural History

    Brenes was arrested and indicted for narcotics violations after the wiretap. He moved to suppress the intercepted conversations, derivative physical evidence, and inculpatory statements. The trial court denied the motion. Brenes pleaded guilty after the denial. The Appellate Division reversed, directing dismissal of the indictment, finding a “blatant” violation of the minimization requirements. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether the police’s failure to attempt to minimize the interception of nonpertinent conversations during the execution of a wiretap order requires suppression of all intercepted conversations and evidence derived therefrom?

    Holding

    Yes, because the police made no attempt to minimize the interception of nonpertinent conversations, thereby violating the constitutional prohibition against general searches.

    Court’s Reasoning

    The Court emphasized the importance of minimizing the interception of nonpertinent communications during wiretaps, citing the need to protect individual rights and prevent general searches. The Court referenced People v. Floyd, stating that the People must show that “procedures were established to minimize interception of nonpertinent communications and that a conscientious effort was made to follow such procedures.” While total interception is not a per se violation, the inquiry must focus on whether practicable procedures could have been implemented to avoid intercepting innocent conversations. Here, the Court found that no procedures to limit interception were established or even attempted. The Court dismissed the argument that the difficulty of determining pertinence in a foreign language justified the neglect of any minimization effort, noting that Spanish-speaking officers could have been assigned to monitor the calls initially. The Court stated that the supervising attorney’s loss of “control” left the police officers without guidance. The Court distinguished between cases where minimization efforts fell short and cases where no attempt was made at all. The Court held that since the execution of the order completely disregarded statutory minimization requirements, total suppression was warranted. “[I]f minimization is to be carried out in good faith, police officers conducting interceptions must know what and how to minimize.”

  • People v. Washington, 46 N.Y.2d 116 (1978): Establishing Probable Cause for Wiretap Orders

    People v. Washington, 46 N.Y.2d 116 (1978)

    To sustain wiretap and eavesdropping orders, probable cause must be established on the face of each application, without relying on unexpressed assumptions or placing an undue burden on defendants to analyze the bases for prior orders.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s decision to vacate convictions obtained through wiretap and eavesdropping orders. The court held that the orders, obtained during a District Attorney’s investigation of police involvement in illegal gambling, were unsustainable because they relied on unacceptable premises, including unstated connections between evidence, judicial recollection of prior orders’ bases, and an unreasonable burden on defendants to decipher the justification for the orders. The court acknowledged that guilty defendants might escape punishment, but emphasized the importance of upholding procedural justice.

    Facts

    The New York County District Attorney’s office conducted an investigation into police involvement in illegal gambling operations. During the investigation, the DA obtained 107 wiretap and eavesdropping orders. The legality of these orders was later challenged.

    Procedural History

    The Appellate Division vacated the convictions that were based on evidence obtained through the wiretap and eavesdropping orders. The People appealed this decision to the New York Court of Appeals.

    Issue(s)

    Whether wiretap and eavesdropping orders can be sustained when probable cause is not evident on the face of each application, and instead relies on presumptions about connections between evidence, judicial recollection of prior orders’ bases, and an unreasonable burden on defendants to analyze the justifications for the orders.

    Holding

    No, because sustaining the orders would require unacceptable presumptions about the linking of evidence, judicial recollection, and the defendant’s ability to understand the unexpressed basis for the orders. It would also place an intolerable burden on the persons for whose protection the restrictions on wiretapping and eavesdropping orders have been imposed.

    Court’s Reasoning

    The Court of Appeals determined that sustaining the wiretap and eavesdropping orders required several unacceptable presumptions. First, that connections between evidence could be pieced together despite changes in federal and state law. Second, that the judge signing the orders recalled the bases of prior orders and understood them to be the basis for subsequent orders, even without explicit indication. Third, that reviewing courts and defendants would understand the unexpressed basis upon which the orders had been granted, and that defendants would have a fair opportunity to analyze those bases. The court stated that “None of these presumptions reflect reality and in any event would place an intolerable burden on the very persons for whose protection the restrictions on wiretapping and eavesdropping orders have been imposed.” The court acknowledged that this decision might allow guilty parties to escape conviction, but emphasized that such is the cost of maintaining procedural justice. The court further justified its holding by noting the considerable time that had passed since the crimes and that the issues concerned a gap between older law and current statutory and decisional law. The court concluded that reversing the Appellate Division to “save the prosecutions” would create a damaging precedent by violating fundamental principles of procedural justice.

  • People v. Morhouse, 21 N.Y.2d 66 (1967): Establishing Aider and Abettor Liability

    People v. Morhouse, 21 N.Y.2d 66 (1967)

    To be liable as an aider and abettor, a defendant must share the intent of the principal actor and take actions that encourage or induce the commission of the crime.

    Summary

    Morhouse, a political leader, was convicted of bribery and taking unlawful fees for his role in securing a liquor license for the New York Playboy Club by bribing Martin Epstein, Chairman of the State Liquor Authority. The prosecution argued Morhouse aided and abetted both the Playboy people in bribing Epstein and Epstein in taking unlawful fees. The Court of Appeals affirmed the conviction, holding that the evidence was sufficient to show Morhouse knew Epstein was to be bribed and that he encouraged the bribers, establishing a sufficient identity of interest between Morhouse and Epstein. The court remanded for a hearing on potential eavesdropping violations.

    Facts

    Playboy representatives initially agreed to bribe Epstein for a liquor license. This deal stalled. Epstein suggested involving Morhouse to resolve the issues. Morhouse agreed to help secure the license for $100,000, indicating knowledge of the prior corrupt arrangement with Epstein. After Morhouse’s involvement, Epstein told Berger, a Playboy representative, that he and Morhouse had discussed the deal and instructed Berger to pay Epstein his $50,000. Epstein eventually received half of his bribe.

    Procedural History

    Morhouse was convicted in the Supreme Court, New York County, of bribery and taking unlawful fees. The Appellate Division, First Department, affirmed the judgment. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the circumstantial evidence presented by the prosecution was sufficient to prove Morhouse’s guilt beyond a reasonable doubt.
    2. Whether the accomplice testimony was sufficiently corroborated.
    3. Whether the court orders authorizing eavesdropping were properly issued and executed and, if not, whether the evidence presented at trial was tainted by any improper eavesdropping.

    Holding

    1. Yes, because Morhouse knew of the corrupt agreement and encouraged the bribers to continue, satisfying the requirements for aider and abettor liability.
    2. Yes, because there was non-accomplice evidence fairly tending to connect Morhouse with the commission of the crime.
    3. Remanded for a hearing to determine whether the court orders authorizing eavesdropping were properly issued and executed under the law as it was understood at the time and to determine if the People’s evidence was tainted.

    Court’s Reasoning

    The court reasoned that Morhouse could be held liable as an aider and abettor because he knew Epstein was to be bribed and attached himself to the bribers’ cause, encouraging them to continue with the corrupt agreement. Morhouse’s representation that he could handle Epstein induced them to consummate the agreement. The court distinguished this case from others where the defendant had no personal interest in the crime’s commission. Here, Morhouse’s payment depended on the Playboy Club getting the license, requiring Epstein to fulfill his bargain. The court found sufficient corroboration of the accomplice testimony. Non-accomplice testimony showed Morhouse’s arrangement for payment by Playboy through its publishing affiliate and his efforts to shift the payment on the books after the Grand Jury investigation began. Regarding the eavesdropping, the court held that Morhouse had standing to object to bugs and wiretaps of his own business office and phone calls. The court remanded for a hearing to determine the propriety of these eavesdrops and whether they tainted the evidence. The court noted that the prosecution’s conduct in maintaining electronic surveillance of Morhouse’s office after he became a suspect and was known to confer with his attorney raised concerns about potential interference with his Sixth Amendment right to counsel.

  • Sarisohn, Matter of, v. Appellate Division, 21 N.Y.2d 36 (1967): Admissibility of Wiretap Evidence and Judicial Misconduct

    Matter of Sarisohn, 21 N.Y.2d 36 (1967)

    Evidence obtained through illegal wiretaps is inadmissible in judicial disciplinary proceedings, and judges can be disciplined for misconduct both before and during their tenure, provided such misconduct reflects on their fitness for judicial office.

    Summary

    Floyd Sarisohn, a Suffolk County District Court Judge, appealed his removal from office by the Appellate Division. The charges included advising a prostitute, improper conduct as a judge (unlawful jailing of a litigant), imposing excessive bail, and improper handling of a traffic summons. A key piece of evidence was derived from wiretaps. The New York Court of Appeals reversed and remanded, holding that the wiretap evidence was illegally obtained and therefore inadmissible. While the court acknowledged the Appellate Division’s broad discretion in removal proceedings, it ruled that the impermissibly obtained evidence significantly impacted the lower court’s decision and warranted reconsideration of the sanction.

    Facts

    Floyd Sarisohn, a District Court Judge, was accused of several acts of misconduct, including:
    1. Advising a prostitute on how to handle her criminal case and continue her activities while Sarisohn was a Justice of the Peace. Evidence for this charge came from wiretapped phone conversations.
    2. Illegally jailing a defendant in a property damage case for refusing to disclose the owner of the vehicle.
    3. Setting an excessively high bail ($1,500,000) for an alleged burglar.
    4. Improperly handling a traffic summons for a journalist friend.
    5. Instructing a court attache to obliterate docket entries in a landlord-tenant case while Sarisohn was a Justice of the Peace.
    6. Displaying prejudice towards an attorney and using abusive language towards trial counsel.

    Procedural History

    The Appellate Division, Second Department, removed Judge Sarisohn from office based on multiple charges of misconduct. Sarisohn appealed to the New York Court of Appeals, arguing the inadmissibility of wiretap evidence and challenging the basis for his removal.

    Issue(s)

    1. Whether evidence obtained from wiretaps, authorized under a statute later deemed unconstitutional, is admissible in judicial disciplinary proceedings.
    2. Whether a judge can be disciplined for misconduct committed before their current term in office.

    Holding

    1. No, because the wiretaps were illegally obtained due to insufficient affidavits and unrecorded oral statements supporting the eavesdropping orders.
    2. Yes, because prior conduct affecting general character and fitness for judicial office can be considered, especially when the prior office is of a similar judicial nature.

    Court’s Reasoning

    The Court of Appeals held that the wiretap evidence was inadmissible because the orders authorizing the wiretaps were not obtained in accordance with statutory requirements. The affidavits were insufficient, and oral statements made to the issuing Justices were not recorded, failing to establish an adequate factual basis for the orders. Citing People v. McCall, the Court emphasized the need for a complete record to justify such orders.

    Regarding the admissibility of evidence of misconduct prior to Sarisohn’s election as a District Court Judge, the Court held that such evidence is admissible if it reflects on the judge’s general character and fitness for office. The court stated, “It would be an unseemly and unsound distinction with respect to a matter affecting general character and fitness to immunize a Judge from his prior misconduct as a Judge of lesser or higher rank.”

    The Court, referencing Matter of Droege, acknowledged the Appellate Division’s broad discretion in determining what constitutes “cause” for removal. However, it found that the improperly admitted wiretap evidence likely influenced the Appellate Division’s decision. Therefore, the Court remanded the case to the Appellate Division for reconsideration without the tainted evidence.

    Chief Judge Fuld concurred regarding the inadmissibility of the wiretap evidence, asserting that section 813-a of the Code of Criminal Procedure was unconstitutional in its entirety following the decision in Berger v. New York, rendering any ex parte order permitting eavesdropping invalid.

    The Court also highlighted instances of misconduct that supported the removal decision, such as the unlawful jailing of a litigant and attempts to coerce trial counsel, indicating a “pattern of unjudicial conduct.”

  • People v. Machlovitz, 26 N.Y.2d 104 (1970): Scope of Appeal After Guilty Plea Regarding Eavesdropping Evidence

    People v. Machlovitz, 26 N.Y.2d 104 (1970)

    Recordings obtained through judicially authorized eavesdropping are not considered ‘unlawfully obtained’ property under Section 813-c of the Code of Criminal Procedure, limiting the grounds for appeal after a guilty plea.

    Summary

    This case addresses the scope of appeals permitted under Section 813-c of the Code of Criminal Procedure following a guilty plea, specifically concerning evidence obtained via court-ordered eavesdropping. The Court of Appeals held that such judicially authorized recordings do not constitute ‘unlawfully obtained’ property, thus restricting the defendant’s ability to appeal the denial of a motion to suppress that evidence after pleading guilty. The court reasoned that Section 813-c is designed for evidence seized illegally, not through lawful court orders. The District Attorney conceded that the appellants could withdraw their guilty pleas.

    Facts

    The case involves recordings of conversations obtained through judicial orders authorizing eavesdropping under Section 813-a of the Code of Criminal Procedure. The defendants moved to suppress these recordings, arguing their illegality. The motion to suppress was denied, and the defendants subsequently pleaded guilty. They then attempted to appeal the denial of their suppression motion under the special provisions of Section 813-c of the Code of Criminal Procedure, which allows appeals of suppression denials even after a guilty plea under specific circumstances.

    Procedural History

    The defendants appealed to the Appellate Division after their motion to suppress was denied and they subsequently pleaded guilty. The Appellate Division dismissed the appeal. The Court of Appeals granted leave to appeal, finding the dismissal a final determination affecting a substantial right.

    Issue(s)

    Whether recordings of conversations made pursuant to judicial orders authorizing eavesdropping under Section 813-a of the Code of Criminal Procedure constitute property ‘unlawfully obtained’ under Section 813-c of the Code of Criminal Procedure, thus allowing an appeal from the denial of a motion for their suppression after a plea of guilty.

    Holding

    No, because recordings obtained through judicially authorized eavesdropping are not considered ‘unlawfully obtained’ property as contemplated by Section 813-c. Therefore, the defendants could not avail themselves of the special appeal provisions after pleading guilty.

    Court’s Reasoning

    The Court reasoned that Section 813-c provides a special avenue for appeal ‘notwithstanding’ a guilty plea, but only under specific conditions: when the appeal concerns the denial of a motion to suppress property ‘unlawfully obtained.’ The court emphasized that judicially authorized eavesdropping, conducted under Section 813-a, does not result in property ‘unlawfully obtained.’ The statute contemplates illegally seized evidence, not evidence obtained through proper legal channels, i.e., a court order. Therefore, a defendant seeking to challenge evidence obtained via lawful eavesdropping is limited to the ‘general avenues open in criminal cases’ and cannot rely on Section 813-c after a guilty plea. The court noted that the dismissal of the appeal by the Appellate Division was a ‘final determination affecting a substantial right,’ justifying the Court of Appeals’ review. The court implicitly acknowledges the finality of a guilty plea. The key takeaway is the emphasis on lawful versus unlawful obtaining of evidence and its impact on appeal rights after a guilty plea. The court states, “Recordings of conversations made pursuant to judicial orders authorizing eavesdropping under section 813-a of the Code of Criminal Procedure are not such property ‘unlawfully obtained’ and a party aggrieved by a denial of a motion addressed to such recordings is left to appeal under the general avenues open in criminal cases.”