People v. Di Stefano, 38 N.Y.2d 642 (1976)

Evidence of crimes not initially sought in an eavesdropping warrant is admissible if the warrant was lawfully obtained, the interception was inadvertent and in good faith, and the warrant is retroactively amended to include the new evidence.

Summary

Di Stefano was convicted of conspiracy and attempted robbery based on evidence obtained through an eavesdropping warrant initially targeting other crimes. The warrant was later amended to include the robbery. The Appellate Division reversed, suppressing the eavesdropping evidence and finding insufficient evidence of attempted robbery. The New York Court of Appeals modified the order, holding the eavesdropping evidence admissible because it was inadvertently overheard during a lawful wiretap and the warrant was properly amended. However, the court agreed that the evidence was insufficient to prove attempted robbery under the established “Rizzo” standard.

Facts

Police obtained an eavesdropping warrant for Jimmy’s Lounge, targeting organized crime figures involved in bookmaking, gambling, and extortion. The warrant was repeatedly renewed and expanded. During the second renewal period, police overheard a conversation between Di Stefano and Fristachi suggesting a plan to “clock” a messenger. Later, during the third renewal period, additional conversations indicated Di Stefano intended to meet the messenger at the Commodore Hotel. Police visually surveilled Di Stefano but no robbery occurred. The warrant was then amended to include robbery and conspiracy to rob, incorporating Di Stefano’s conversations. The April 6 conversation was referenced in the application through the daily plant report.

Procedural History

Di Stefano was convicted of conspiracy and attempted robbery. The Appellate Division reversed, suppressing the eavesdropping evidence and holding the attempted robbery evidence insufficient. The People appealed to the New York Court of Appeals.

Issue(s)

1. Whether evidence of crimes not initially sought in an eavesdropping warrant is admissible under CPL 700.65(4) if the warrant is retroactively amended.
2. Whether the prosecution presented sufficient evidence to demonstrate compliance with minimization requirements for the eavesdropping warrant.
3. Whether the evidence was sufficient to sustain a conviction for attempted robbery under the standard articulated in People v. Rizzo, despite the revised Penal Law definition of attempt.

Holding

1. Yes, because the communications were inadvertently intercepted during a lawfully authorized eavesdrop, and the warrant was properly amended to include the new crimes, satisfying the requirements of CPL 700.65(4).
2. Yes, because testimonial evidence demonstrated adequate minimization instructions were given, and the defense failed to rebut this evidence or examine the officers.
3. No, because the evidence did not establish that the defendant was “very near to the accomplishment of the intended crime,” as required by People v. Rizzo, a standard unchanged by the revised Penal Law.

Court’s Reasoning

The court reasoned that CPL 700.65(4) essentially grafts the “plain view” exception onto eavesdropping warrants. Just as evidence discovered during a lawful physical search is admissible, so too are communications inadvertently intercepted during a lawful wiretap. The “inadvertence” requirement protects against anticipated discoveries where law enforcement has probable cause and time to obtain a warrant but fails to do so. Here, the authorities lacked probable cause to amend the warrant based solely on the April 6 conversation. The court rejected the argument that the April 6 interception made the April 17 interceptions intentional, finding the latter to be a valid “plain view” discovery. The court emphasized that the daily plant reports, which included the April 6 conversation, were before the judge when the warrant was amended, satisfying the amendment requirement. Addressing minimization, the court noted that the People presented testimonial evidence of adequate minimization instructions. Finally, the court reaffirmed the Rizzo standard for attempted robbery, holding that the revised Penal Law did not alter the requirement that the defendant be “very near to the accomplishment of the intended crime.” The court stated, “A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime”. However, this did not change the Rizzo standard. The court directly quoted United States v Cox: “[W]e uphold the statute on the basis that it demands an original authorization in accordance with the mandate of Berger v. New York…”