New York Law Review

Tag: Organized crime

  • People v. Rabb, 16 N.Y.3d 144 (2010): Necessity of Exhausting Normal Investigative Procedures Before Eavesdropping

    People v. Rabb, 16 N.Y.3d 144 (2010)

    Before obtaining an eavesdropping warrant, law enforcement must demonstrate that normal investigative procedures have been tried and failed, reasonably appear unlikely to succeed if tried, or are too dangerous to employ; generalized and conclusory statements are insufficient.

    Summary

    Defendants Rabb and Mason challenged an eavesdropping warrant, arguing the prosecution failed to show normal investigative measures were exhausted or unlikely to succeed. The investigation stemmed from activities of a minority labor coalition, P&D Construction Workers Coalition, suspected of using coercion to force construction companies to hire their workers. The New York Court of Appeals affirmed the lower courts’ denial of the motion to suppress, finding sufficient record support that normal investigative procedures were unlikely to succeed, given the collusive relationships and potential for witness intimidation. The Court emphasized that while wiretapping shouldn’t be a first step, all conceivable techniques need not be exhausted.

    Facts

    The Labor Racketeering Unit (LRU) investigated Akbar’s Community Services, finding they coerced construction companies. The investigation revealed P&D Construction Workers Coalition, run by Rabb and Mason, engaged in similar coercive techniques. A construction company president gave investigators a business card from “Divine” of P&D, with a cell phone number linked to Carol Rabb. Billing records showed frequent calls between “Divine” and Akbar’s leaders. An undercover LRU investigator learned from Rasberry that P&D could cause trouble at job sites. Another contractor reported being approached by a P&D agent. Intercepted calls between Walker and Rabb revealed collusive efforts between Akbar and P&D. Physical surveillance to identify Rabb proved unsuccessful.

    Procedural History

    Defendants were indicted for enterprise corruption and grand larceny. They moved to suppress evidence from the eavesdropping warrants, arguing the application for Rabb’s warrant didn’t meet CPL 700.15 (4). Supreme Court denied the motions. Rabb and Mason pleaded guilty, preserving their right to appeal the denial of their suppression motions. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s decision.

    Issue(s)

    Whether the People’s application for an eavesdropping warrant against Rabb’s cell phone met the requirements of CPL 700.15(4), specifically, whether the application demonstrated that normal investigative procedures had been tried and failed, reasonably appeared unlikely to succeed if tried, or were too dangerous to employ.

    Holding

    Yes, because the People’s application demonstrated that normal investigative measures would reasonably have been unlikely to succeed if tried, based on the specific facts of the collusive relationship between Akbar and P&D, the potential for witness intimidation, and the limitations of other investigative techniques in this particular context.

    Court’s Reasoning

    CPL 700.15 (4) requires a showing that normal investigative procedures have been tried and failed, or reasonably appear unlikely to succeed if tried, or to be too dangerous to employ. The Court emphasized that wiretaps should not be used as a routine first step in investigations. The legislative intent behind CPL article 700 was to balance privacy rights with society’s interest in fighting crime, especially organized crime, where traditional methods often fail to reach high-level members. The Court found that the LRU did not resort to wiretapping as a routine first step, referencing the contact with the construction contractor, the phone number registered to Rabb, and the undercover officer’s information. The application outlined collusive efforts between Akbar and P&D, including shared information about job sites. While physical surveillance, undercover operations, witness interviews, and search warrants were used in the Akbar investigation, the People provided reasons why those techniques would be unlikely to succeed against Rabb and Mason. Specifically, physical surveillance was limited, undercover efforts had limited success, witnesses were unlikely to testify due to fear, and grand jury subpoenas would publicize the investigation. The Court noted, “[a]n affidavit describing the standard techniques that have been tried and facts demonstrating why they are no longer effective is sufficient to support an eavesdropping order even if every other possible means of investigation has not been exhausted.” The Court concluded that the People provided “some basis for concluding that less intrusive investigative procedures [were] not feasible” quoting United States v. Howard, 350 Fed Appx 517, 519 (2d Cir 2009) and that it is not required “to resort to measures that will clearly be unproductive” quoting United States v. Terry, 702 F.2d 299, 310 (2d Cir. 1983). The Court rejected the argument that because normal measures succeeded in the Akbar case they would have succeeded here, concluding “Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely.”

  • People v. Besser, 96 N.Y.2d 141 (2001): Accomplice Corroboration in Enterprise Corruption Cases

    People v. Besser, 96 N.Y.2d 141 (2001)

    In an enterprise corruption prosecution, the accomplice corroboration rule (CPL 60.22[1]) requires only independent evidence tending to connect the defendant to the offense of enterprise corruption, not separate corroboration for each predicate criminal act.

    Summary

    Defendants Besser and Ciauri were convicted of enterprise corruption based on multiple predicate criminal acts. On appeal, they argued that the accomplice testimony used to prove each predicate act required independent corroboration. The New York Court of Appeals held that CPL 60.22(1) requires only that there be independent corroborative evidence tending to connect the defendant to the overall offense of enterprise corruption, not to each individual predicate act. The Court reasoned that the ‘offense’ is enterprise corruption, not the underlying acts, and thus the corroboration requirement is satisfied by a link to the enterprise.

    Facts

    James Besser and Jerry Ciauri, along with others, were indicted on enterprise corruption charges. The indictment alleged 62 pattern criminal acts in furtherance of an organized crime family’s activities between 1983 and 1993. Besser and Ciauri were charged with multiple pattern acts, including robbery, conspiracy to commit murder, grand larceny, and coercion. The evidence showed the crime family engaged in various illegal schemes like bookmaking, loansharking, and credit card fraud.

    Procedural History

    Besser and Ciauri were jointly tried and convicted of enterprise corruption. The Appellate Division affirmed their convictions. A judge of the New York Court of Appeals granted leave to appeal, and the Court of Appeals then affirmed the Appellate Division’s decision.

    Issue(s)

    Whether, in an enterprise corruption prosecution, the accomplice corroboration rule (CPL 60.22[1]) requires independent evidence tending to connect the defendant to each specific pattern criminal act, or whether it is sufficient for there to be independent evidence tending to connect the defendant to the overall offense of enterprise corruption.

    Holding

    No, because CPL 60.22(1) requires only independent evidence tending to connect the defendant to the offense charged, which in this case is enterprise corruption, not the individual pattern acts that make up the offense.

    Court’s Reasoning

    The Court reasoned that Penal Law § 10.00(1) defines an “offense” as conduct for which a sentence of imprisonment or a fine is provided. While enterprise corruption requires proof of at least three pattern acts, those acts themselves are not offenses that carry separate sentences. The “offense” is the overarching crime of enterprise corruption, which involves participation in a criminal enterprise through a pattern of criminal activity. The Court emphasized that the purpose of the enterprise corruption statute is to target the unique harm caused by complex criminal organizations, not merely to punish individual criminal acts already covered by other Penal Law provisions. The court noted the jury must find the defendant committed the acts to participate in an ascertainable criminal enterprise. Quoting CPL 60.22(1), the court stated that a “defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense”. Here, the offense is enterprise corruption. The court also found sufficient independent proof linking the defendants to the crime family, including testimony from non-accomplice witnesses, documentary evidence placing defendants at a “safe house,” and telephone records corroborating accomplice accounts of communications.

  • People v. Weinrich, 65 N.Y.2d 37 (1985): Interpreting ‘Crimes Dangerous to Life, Limb, or Property’ for Eavesdropping Warrants

    People v. Weinrich, 65 N.Y.2d 37 (1985)

    Crimes such as forgery, criminal possession of stolen property, and related offenses can be considered ‘crimes dangerous to life, limb, or property’ under federal law, thus permitting state-authorized eavesdropping warrants when those crimes are part of a larger criminal enterprise that endangers public safety.

    Summary

    This case addresses whether New York State exceeded the permissible scope of federal law by authorizing eavesdropping warrants for forgery, larceny, and related crimes. The Court of Appeals reversed the lower court’s suppression of evidence, holding that the crimes, when committed as part of an organized criminal network that circumvents vehicle safety regulations, do endanger public safety and property. This aligns with the intent of the Omnibus Crime Control and Safe Streets Act of 1968, which allows eavesdropping for crimes “dangerous to life, limb, or property.” The court emphasized the interconnectedness of the crimes with broader public safety concerns stemming from the operation of unsafe vehicles and the facilitation of vehicle theft.

    Facts

    An investigation revealed an organized criminal network operating at the 125th Street Auto School in New York City. The scheme involved corrupt DMV employees who processed fraudulent applications for duplicate vehicle titles, facilitating the disposal of stolen vehicles. Jarret Weinrich, the auto school’s proprietor, also offered services like driver’s licenses without road tests and inspection stickers without inspections. The investigation began after a stolen VIN was found on a vehicle registered using a forged title application processed through the auto school. An informant then implicated others involved in vehicle theft and the sale of VINs to Weinrich.

    Procedural History

    Based on the investigation, an eavesdropping warrant was issued for the auto school. Evidence obtained through the warrant led to indictments against Weinrich and others for various crimes, including forgery, criminal possession of stolen property, and conspiracy. The Criminal Term granted motions to suppress the evidence and dismissed the indictments, arguing the crimes weren’t covered by the federal statute allowing eavesdropping. The Appellate Division affirmed. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether court-ordered eavesdropping for evidence of forgery, larceny, and related crimes listed as “Designated offenses” in CPL 700.05 (8) falls within the scope of the Federal act as “other crime dangerous to life, limb, or property” (18 USC § 2516 [2]), thus permitting the use of such evidence in court.

    Holding

    Yes, because the crimes, as part of an organized scheme that circumvents vehicle safety regulations and facilitates vehicle theft, do endanger public safety and property, aligning with the intent of the Omnibus Crime Control and Safe Streets Act of 1968.

    Court’s Reasoning

    The court distinguished this case from People v. Shapiro, which involved consensual conduct that Congress intended to exclude from eavesdropping authorization. Here, the criminal operation involved corrupt public employees and directly endangered public safety by allowing unqualified drivers and unsafe vehicles on the road. The court noted that the scheme to circumvent regulations endangered people and property, and the stealing of VINs and forging of documents directly endangered property by concealing and facilitating the theft of motor vehicles. The court cited the Senate Report stating that “'[t]he term ‘property’ * * * is not to be read restrictively’”. The court reasoned that Congress intended the word “crime” in the phrase “other crime dangerous to life, limb, or property” to be construed generically, allowing states flexibility in enacting enabling legislation. Moreover, the court emphasized the organized nature of the criminal enterprise, stating the activities portrayed “ ‘intrinsically serious or * * * [are] characteristic of the operations of organized crime’ [Sen Rep No. 1097, 90th Cong, 2d Sess, 1968, US Code Cong & Admin News, at 2234]”. Thus, the court determined that the eavesdropping orders were permissible, and the indictments should be reinstated.