Opinion
December 20, 1982
Appeal (1) by defendant Jeffrey Sardegna from a judgment of the Supreme Court, Suffolk County (Jaspan, J.), rendered October 15, 1981, convicting him of attempted criminal possession of marihuana in the second degree, upon a plea of guilty, and imposing sentence, and (2) by defendant Carol Sardegna from a judgment of the same court, also rendered October 15, 1981, convicting her of criminal possession of marihuana in the fourth degree, upon a plea of guilty, and imposing sentence. The appeals bring up for review the denial of defendants' motion to controvert an eavesdropping warrant and to suppress physical evidence. Matter remitted to Criminal Term for an evidentiary hearing on the issue of minimization in accordance herewith relating solely to those conversations in which defendants participated, and appeals held in abeyance in the interim. Where minimization is at issue, the People bear the burden of going forward to show the legality of the police conduct in the first instance ( People v Floyd, 41 N.Y.2d 245, 250). At bar, the People failed to offer sufficient evidence to justify denial of the defendants' motion without a hearing. However, the right to object to the "use of intercepted conversations obtained through eavesdropping devices is personal and limited to a party to the conversation or whose premises are involved" ( People v Butler, 33 A.D.2d 675, affd 28 N.Y.2d 499; see People v Edelstein, 98 Misc.2d 1018; United States v Williams, 580 F.2d 578, cert den sub nom. Lincoln v United States, 439 U.S. 832). Accordingly, since defendants had no proprietary interest in the subject premises they may object only to those conversations in which they participated. Titone, J.P., O'Connor, Thompson and Bracken, JJ., concur.