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People v. Edelstein

54 N.Y.2d 306 Court N.Y. Decision date 1981-11-24 English

Delivered by Gabrielli, J.

Contents

Majority

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The People of the State of New York, Respondent, v Robert Edelstein, Appellant.
Argued October 19, 1981;
decided November 24, 1981
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POINTS OF COUNSEL
Roger Bennet Adler and Deborah A. Schwartz for appellant.
I. Criminal term erred in denying defendant’s motion to controvert the eavesdrop orders and in failing to suppress the intercepted conversations. (People v Washington, 46 NY2d 116 ; United States v Gigante, 538 F2d 502 ; People v Sher, 38 NY2d 600 ; People v Darienzo, 68 AD2d 806 ; People v Weiss, 63 AD2d 662 , 48 NY2d 988 ; People v Pecoraro, 58 AD2d 462 ; People v Guenther, 81 Misc 2d 258 ; People v Scaccia, 55 AD2d 444 ; People v Brenes, 52 AD2d 78 , 42 NY2d 41 .) II. The indictment must be dismissed because the indicting Grand Jury was improperly extended and therefore the Grand Jury lacked the power to return the indictment. (Matter of Tyler v Polsky, 57 AD2d 422 ; People v Stern, 3 NY2d 658 ; Matter of Seidenberg v County Ct. of County of Rockland, 34 NY2d 499 ; Matter of McClure v County Ct. of County of Dutchess, 41 AD2d 148 ; United States v Fein, 504 F2d 1170 .) III. The indictment must be dismissed because the Assistant District Attorney failed to properly fulfill the obligation of legal advisor to the Grand Jury. (People v Rastelli, 37 NY2d 240 ; People v Salko, 47 NY2d 230 ; People v Bell, 48 NY2d 913 ; People v Settles, 46 NY2d 154 ; People v Maerling, 46 NY2d 289 ; People v Calbud, Inc., 49 NY2d 389 .)
Robert M. Morgenthau, District Attorney (Amyjane Rettew and Robert M. Pitler of counsel), for respondent.
I. The court properly denied defendant’s motion to suppress evidence gathered by means of court-ordered electronic suveillance. (Oswaco Lake Cemetery v Teller, 110 App Div 450 ; People v Hall, 169 NY 184 ; People v Cona, 49 NY2d 26 ; People v Rodriguez, 52 NY2d 483 ; People v Herskowitz,
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41 NY2d 1094 ; People v Chapman, 13 NY2d 97 ; United States v Vento, 533 F2d 838 ; United States v Pacheco, 489 F2d 554 , 421 US 909 ; United States v Martinez, 588 F2d 1227 .) II. The term of the Grand Jury was properly extended. (Matter of Coonan v Roberts, 71 AD2d 563 ; Matter of McClure v County Ct. of County of Dutchess, 41 AD2d 148 ; Matter of Seidenberg v County Ct. of County of Rockland, 34 NY2d 499 . III. The legal instructions given to the Grand Jury were proper. (People v La Ruff a, 34 NY2d 242 , 423 US 917 ; People v Kazmarik, 52 NY2d 322 ; People v Cohen, 52 NY2d 584 ; People v Savino, 44 NY2d 669 ; People v Tarsia, 50 NY2d 1 ; People v Salko, 47 NY2d 230 ; People v Calbud, Inc., 49 NY2d 389 .)

OPINION OF THE COURT

Defendant was charged with three counts of bribery in the second degree (Penal Law, § 200.00) and one count of conspiracy in the third degree (Penal Law, § 105.05) by an indictment which alleged, among other things, that the defendant conspired with one Harry Shapiro to bribe Abram Brown, a law assistant employed by Supreme Court, New York County, and that he had bribed Brown to secure judicial decisions favorable to defendant’s interest in two cases. By motion, defendant sought to suppress certain intercepted conversations obtained by wiretaps placed on Abram Brown’s personal and business phones. Following the denial of this motion, defendant entered a plea of guilty to the indictment and the Appellate Division thereafter affirmed the convictions, without opinion.

Defendant now asserts several challenges to the admissibility of the wiretap evidence, including the alleged failure of the People to minimize (GPL 700.30, subd 7) and their failure to seal the tapes immediately upon the expiration of the period of the eavesdropping warrant (GPL 700.50, subd 2).[1] Raised in connection with each of these challenges

* CPL 700.50 (subd 2) provides that: “[i]immediately upon the expiration of the period of an eavesdropping warrant, the recordings of communications made pursuant to subdivision three of section 700.35 must be made available to the issuing justice and sealed under his directions”.

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is the question of defendant’s standing to contest the admissibility of conversations in which he took no part. In regard to the minimization requirement, we conclude that defendant has no standing to challenge the interception of third-party conversations. The minimization requirement is rooted in the Fourth Amendment’s ban upon unreasonable searches and seizures, and defendant has no standing to assert the Fourth Amendment rights of another (see Rakas v Illinois, 439 US 128 ). Without standing to assert the failure of the police to minimize in regard to third-party conversations, defendant’s remaining minimization arguments are wholly without merit. In contrast, we conclude that defendant does have standing to challenge the failure of the People to seal the tapes in accordance with the dictates of the statute (GPL 700.50, subd 2). The sealing requirement is designed, among other things, “to prevent tampering, alterations or editing” (People v Nicoletti, 34 NY2d 249 , 253). Since this requirement goes to the very integrity of the tapes, rather than to the intrusion created by the wiretap, it has been held that a defendant does have standing to challenge the failure of the People to seal tapes properly, even though the tapes contain only the conversations of third parties (People v Trevorah, 63 AD2d 662 , affd 48 NY2d 988 ).

In the present case, however, although defendant has standing to challenge the allegedly untimely sealing of the tapes, we nevertheless conclude that the defendant’s motion to suppress the tapes was properly denied. While the requirement of immediate sealing must be strictly construed, the eavesdropping statute also mandates that the courts consider whether the People have offered a satisfactory explanation for any delay which might have occurred (People v Washington, 46 NY2d 116 , 123-124). Defendant asserts error in the failure of the People to seal immediately the tapes authorized by the first set of warrants and the two subsequent extensions of those original warrants. The original warrants were to expire at midnight on Saturday, March 19, 1977. The tapes from the tap on Brown’s business phone were sealed on Monday, March 21, and the tapes from Brown’s home phone were

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sealed on the following day. The Justices who issued both of these orders were, however, unavailable on the intervening Sunday. In addition, the People demonstrated that the tapes from Brown’s home phone were not sealed on Monday because, when the Assistant District Attorney in charge of the tapes discovered that one of the recordings had been left at the taping site, he promptly telephoned the issuing Justice to advise him that there would be a delay and was then told by the court to bring the tapes in for sealing on Tuesday. For the reasons stated in and upon the rationale of People v Washington (supra, p 124, n 8 ), these delays in sealing do not warrant suppression in this case. Similarly, the tapes attributable to the first extension warrants, due to expire at midnight on Monday, April 18, 1977 and sealed on the following day, were properly ruled admissible. Finally, it is sufficient to note that the tapes obtained pursuant to the second extensions were sealed no later than the day following the termination of the period of the warrants. Furthermore, the arrest of Abram Brown two days prior to the expiration of the warrants authorizing the taps on his telephones did not necessarily serve to reduce the period of the eavesdropping warrants. We conclude that the sealing of tapes on the day following the termination date of a wiretap warrant is generally sufficient to comply with the requirement of immediate sealing and observe, in addition, that the People have offered satisfactory explanations for the brief additional delays which occurred here.

We have considered defendant’s remaining contentions and find them to be without merit.

Accordingly, the order of the Appellate Division should be affirmed.

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

Order affirmed.

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