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People v. Losinno

38 N.Y.2d 316 Court N.Y. Decision date 1975-12-29 English

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The People of the State of New York, Appellant, v John Losinno and Robert Price, Respondents.
Argued November 24, 1975;
decided December 29, 1975
p. 317
Abraham J. Weissman, District Attorney (Michael Schwartz of counsel), for appellant. I.
The court below improperly reversed the judgment of conviction rendered by the Orange County Court for respondents knowingly, intelligently and voluntarily waived their statutory right to appeal their pretrial motions at the time their plea of guilty was entered. (People v White, 32 NY2d 393 ; People v Blakley, 34 NY2d 311 ; Johnson v Zerbst, 304 US 458 ; People v Esajerre, 35 NY2d 463 .) II. The court below erred in holding that the eavesdropping warrant did not sufficiently comply with the technical requirements of CPL 700.30 (subd 5) and was therefore invalid on its face. (Katz v United States, 389 US 347 ; People v Sher, 68 Misc 2d 917 ; United States v Scott, 331 F Supp 233 ; People v Fiorillo, 63 Misc 2d 480 ; People v Kennedy, 75 Misc 2d 10 ; Osborn v United States, 385 US 323 .)
Howard Karger for respondents.
I. The eavesdropping warrant, by commanding and expressly authorizing the overhearing and interception of "all conversations” heard over the target telephone, was in violation of defendants’ constitutional and statutory rights to be free from unreasonable interception of telephonic communications. (Katz v United States, 389 US 347 ; Berger v New York, 388 US 41 ; People v Fino, 29 AD2d 227 , 24 NY2d 1020 ; People v Gnozzo, 31 NY2d 134 ; People v Botta, 60 Misc 2d 869 ; People v Di Stefano, 45 AD2d 56 ; People v Yusko, 45 AD2d 1043 ; People v Kaiser, 21 NY2d 86 .) II. The warrant in issue failing to set forth a designated "law enforcement agency” to execute it makes it fatally defective on its face. (People v Castania, 73 Misc 2d 166 ; People v Kennedy, 75 Misc 2d 10 ; People v Fiorillo, 63 Misc 2d 480 .) III. The District Attorney’s application and the State Police offi
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cer’s affidavit submitted to the issuing Judge lacked probable cause to believe that the target telephone was being used for illegal gambling purposes. (Aguilar v Texas, 378 US 108 ; Spinelli v United States, 393 US 410 ; People v Hendricks, 25 NY2d 129 ; People v Sutton, 32 NY2d 923 ; People v Sciandra, 65 Misc 2d 923 ; People v McCall, 17 NY2d 152 ; People v Rispole, 34 AD2d 663 ; People v Di Carlo, 43 AD2d 797 ; Wong Sun v United States, 371 US 471 ; People v Valentine, 17 NY2d 128 .) IV. Under the circumstance of this case, defendants’ purported waiver of their CPL 710.70 (subds 2, 3) statutory right to appeal was not exemplatory and was extracted by situational coercion and duress under the circumstances and was not knowingly, "intelligently” and voluntarily obtained. (People v White, 40 AD2d 540 , 32 NY2d 393 ; People v Blakley, 34 NY2d 311 ; People v Esajerre, 35 NY2d 463 ; United States ex rel. Elksnis v Gilligan, 256 F Supp 244 ; Santobello v New York, 404 US 257 ; Beasley v United States, 491 F2d 687 ; People v Selikoff, 35 NY2d 227 ; McMann v Richardson, 397 US 759 .) V. The introduction of the illegally seized eavesdropping evidence before the Grand Jury rendered the actions by the court below void by reason of that court’s lack of jurisdiction. (Costello v United States, 350 US 359 ; United States v Calandra, 414 US 338 ; People ex rel. Tanner v Vincent, 44 AD2d 170 ; People v Glen, 173 NY 395 ; People v Nitzberg, 289 NY 523 ; Gelbard v United States, 408 US 41 .) VI. Assuming arguendo, that this court reverses the order, in the instant case, of the court below, it should remit the matter back to the court below for that court to consider the harshness of the sentence imposed as against the respective defendants.

Memorandum. In our view, the Appellate Division erred in holding that the warrant was invalid on its face. The warrant directed the District Attorney "or any other person or persons expressly designated by you” to conduct the wiretap. The Appellate Division found that this violated CPL 700.30 (subd 5) which provides that the "warrant must contain * * * [t]he identity of the law enforcement agency to intercept the communications”. There is no question but that the District Attorney is a law enforcement officer, and it is clear enough that the warrant did identify the law enforcement agency which was to conduct the wiretap. The further authorization permitting the District Attorney to designate "any * * * person” to execute the warrant was obviously included to

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allow persons other than the District Attorney to perform the routine day-to-day surveillance. The obvious intent of this language was to permit the District Attorney to designate a member of his office or another law enforcement official to perform this function. We do not read the warrant, as the defendant would have us do, in such a way as to permit a person who is not a member of a law enforcement agency to conduct the wiretap. Indeed it is significant that when he moved to suppress, the defendant did not claim that the warrant had, in fact, been improperly executed. On this view it is not necessary to decide now whether the condition attached to the acceptance of the plea of guilty constituted a waiver of the issue raised on the motion to suppress or any appeal therefrom.

The order appealed from should be reversed and the case remitted to the Appellate Division for review of the facts in accordance with CPL 470.40 (subd 2, par [b]).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.

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