Opinion
2340-2018
05-08-2019
The PEOPLE of the State of New York, Plaintiff, v. Jay THAMES, Defendant.
Attorney for Defendant: David Ocasio, Esq. Attorney for the People: A.D.A. Thomas Rooney
Attorney for Defendant: David Ocasio, Esq.
Attorney for the People: A.D.A. Thomas Rooney
Barry Kron, J.
Defendant has submitted an omnibus motion seeking, inter alia , suppression of eavesdropping communications and evidence obtained pursuant to eavesdropping surveillance. He asserts that the prosecutor failed to provide him with a copy of the eavesdropping warrant and application within fifteen days of arraignment as required by C.P.L. § 700.70 (Affirmation of David S. Ocasio at ¶9-18). Defendant states that as of December 11, 2018, the People had not provided him with any eavesdropping warrants or corresponding applications, nor had the People shown good cause for their failure to comply with the requirements of C.P.L. § 700.70. Defendant contends that he has been prejudiced because he is unable to file a motion to controvert the eavesdropping warrant (Affirmation of David S. Ocasio at ¶19). In the alternative, defendant requests a hearing on the issue of suppression of the eavesdropping communications and evidence obtained pursuant to the eavesdropping surveillance (Affirmation of David S. Ocasio at ¶20).
The other issues raised in defendant's motion have been decided in a separate Decision and Order dated March 6, 2019 (DiBiase, J.).
In response, the People contend that they complied with the notice requirements of C.P.L. § 700.70. The People assert that defendant was arraigned on the instant indictment on November 13, 2018, and on that same date the Court issued a protective order postponing the discovery and production of Eavesdropping Warrants 11802, 111803 and the subsequent amendments, extensions, applications and affidavits submitted in support, for 30 days. On December 13, 2018, the Court issued a limited protective order permitting the redaction of certain information contained in those documents. The People state that on December 18, 2018, they sent a copy of the documents to defendant's attorney via Federal Express's Express delivery and on December 21, 2018, a detective from the Queens District Attorney's Office personally delivered a copy of the documents to the Legal Aid Society at 120-46 Queens Boulevard (Affirmation of Thomas Rooney at p.6-7).
In the People's supplemental response, they assert that they complied with the November 13, 2018 order because that order gave them 45 days to provide defendant with the wiretap documents. They contend that the November 13, 2018 order extended the People's obligation to produce the wiretap documents by 30 days in addition to the original 15 days that were provided by statute, resulting in the People having a total of 45 days, until December 28, 2018 (People's Supplemental Response at p.3). In the alternative, the People argue that if the Court determines that they only had 30 days to provide the wiretap documents, the notice period should be tolled by 7 days for "fairness." In support of this argument, the People assert that on December 6, 2018, they submitted their application for a limited protective order, in which they sought the Court's approval of their proposed redactions in order to protect the identity of the confidential informant and undercover officers. The People contend that after they submitted their application for a limited protective order, the Court informed the People that it would not approve the application without certain revisions (People's Supplemental Response at p.3). The People state that they could not comply with their discovery obligations until the Court issued the December 13, 2018 order and that it would be unreasonable to require the People to prepare the materials, arrange for service, and then serve "voluminous materials" on the same date that the decision was issued (People's Supplemental Response at p.4).
The Court does not recall the exact date that the People initially submitted their application for a limited protective order.
In determining this motion, the Court has considered the moving papers of the defendant, the opposition of the District Attorney, the supplemental response of the People, the various orders with accompanying documentation, and the court records.
On April 15, 2019, the defense attorney informed the Court that he is not submitting an additional response in relation to this motion.
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C.P.L. § 700.70 provides that the contents of any intercepted communication, or evidence derived therefrom, may not be received in evidence or otherwise disclosed at the trial of a defendant unless the People, within 15 days after arraignment and before the commencement of trial, furnish defendant with a copy of the eavesdropping warrant and the accompanying application under which the interception was authorized or approved. This 15-day period may be extended by the trial court upon good cause shown if it also finds that the defendant will not be prejudiced by the delay in receiving such papers. Where "there has been a failure to comply with the notice provision of C.P.L. § 700.70 and where there has been neither an application for an extension of time within the 15 days provided in that statute nor a showing of good cause for noncompliance and lack of prejudice to defendant", the evidence derived from an intercepted communication must be suppressed" ( People v. Schultz , 67 NY2d 144, 147 [1986] [failure to provide defendant with notice of the warrant until 61 days after arraignment]; see People v. Liberatore , 79 NY2d 208, 212 [1992] ).
The People bear the burden of establishing compliance with the notice provisions (see People v. Winograd , 68 NY2d 383, 390-391 [1986] [amendment of wiretap warrant was not obtained "as soon as practicable"] ). Absent "meticulous" compliance (see People v. Schultz , 67 NY2d at 149 ; People v. Liberatore , 79 NY2d at 213 ), the People lack the authority to wiretap. Any interceptions they make are therefore unlawful, and any such interceptions and evidence derived therefrom are inadmissible (see People v. Bialostok , 80 NY2d 738, 747 [1993] ; People v. Winograd , 68 NY2d at 391 ; People v. Capolongo , 85 NY2d 151, 159-160, 165 [1985] ; People v. Schulz , 67 NY2d at 148 ).
The Court makes the following findings of facts. On November 9, 2018, the People submitted an application to the Court, seeking a protective order postponing the discovery and production of the wiretap documents. The People's application included a proposed protective order that was drafted by the prosecutor and an affirmation of the prosecutor. Defendant was arraigned on the instant indictment on Tuesday, November 13, 2018. On that same day the Court signed the protective order postponing the discovery and production of the wiretap documents "for 30 days from the signing of (the) order" (see November 13, 2018 Order). The Court found that good cause existed to delay the production of the wiretap documents and that the defendant would not be prejudiced by the delay. The period of 30-days to postpone the discovery and production of the wiretap communications was chosen by the People based upon their expectation that the investigation would conclude "within the next month" (see November 9, 2018 Affirmation of A.D.A. Thomas Rooney at ¶12).
The People subsequently submitted an application for a limited protective order to the Court that included (1) a proposed order that would permit the redaction of certain information in the wiretap documents in order to protect the CI and UC's, (2) the December 12, 2018 affirmation of A.D.A. Thomas Rooney requesting the Court's permission to redact certain information contained in the wiretap documents, and (3) a CD containing unredacted and proposed redacted versions of the wiretap documents (the proposed redactions consist of twelve documents, for a total of 1,503 pages). In the affirmation of A.D.A. Thomas Rooney, he acknowledged at four different places that the waiver of the production of the wiretap documents was in effect until December 13, 2018 (see December 12, 2018 Affirmation of A.D.A. Thomas Rooney at ¶'s 2, 8, 9 and 18). On December 13, 2018, at 9:55 a.m., the Court granted the People's application for a limited protective order that approved the People's proposed redactions of certain information contained in the wiretap documents. The People's December 13, 2018 application did not include a request for additional time for the People to provide the wiretap documents to defendant. Five days later, on December 18, 2018, the People sent a copy of the documents to defendant's attorney via Federal Express's Express delivery. The People also personally delivered the documents three days later, on December 21, 2018.
The People have failed to comply with the notice requirements of C.P.L. § 700.70. They initially sought and received an extension of 30 days from the signing of the Court's order to produce the wiretap documents. The November 13, 2018 order was drafted by the People. They did not comply with the deadline that they chose. On the last day for the People to provide the documents to the defense as required by the order, December 13, 2018, the People's application that sought the Court's approval of their proposed redactions was granted. The Court approved the redactions in the morning, at 9:55 a.m. The People had an entire day to serve the documents upon the defense before the expiration of the November 13, 2018 order. Instead, the People waited five days after the expiration of that order until they express mailed the wiretap documents to defendant's attorney and an additional three days until they personally delivered the documents to defendant's attorney.
The People have not provided a reasonable explanation for their failure to comply with the court ordered deadline. It is clear that the prosecutor was aware that the protective order delaying the production of the wiretap documents was in effect until December 13, 2018, because at four different places in his December 12, 2018 affirmation, he acknowledged that the November 13, 2018 order expired on December 13, 2018, (see People's Affirmation in Support of December 13, 2019 Protective Order). The Court rejects the People's assertion that it would be unreasonable to have required the People to prepare the materials, arrange for service, and then actually serve the allegedly "voluminous" materials on the same date that the decision was issued (People's Supplemental Response at p.4). This assertion is not accepted in light of the specific facts of this case. The People's preparation would have been minimal here. The approved redactions were on a CD that the People had prepared and submitted to the Court. The proposed redacted words were blacked out on the CD that had been prepared by the People. Once their proposed redactions were approved, the People could have either easily copied the CD or printed out the documents from the CD and timely served them upon the defense. The Court signed the order early in the morning, at 9:55 a.m. The People had ample time to prepare and serve the documents. The People have simply not provided any acceptable explanation as to why they could not have timely served the defense on the same day that the order was signed.
In addition, if the People had actually needed additional time to process these documents, at any time before the expiration of the order the People could have requested additional time to submit the wiretap documents to the defense. The People did not alert the Court that they needed additional time to process the wiretap documents and serve them upon the defense, nor do they now provide an explanation for their failure to seek additional time. The People, therefore, have not established good cause. The failure of the People to establish good cause for their noncompliance with the notice requirement of C.P.L. § 700.70 requires suppression of the evidence obtained through the wiretap (see People v. Schultz , 67 NY2d at 152 ; People v. Basilicato , 64 NY2d 103, 117 [1984] [the unambiguous requirements of C.P.L. § 700.70 require a showing of both good cause for the delay and a lack of prejudice] ).
Accordingly, the motion is granted. The People's failure to comply with the notice requirements of C.P.L. § 700.70 mandates suppression of the evidence obtained pursuant to the eavesdropping surveillance in this matter. The People may not introduce at trial the contents of any intercepted communications obtained pursuant to the eavesdropping warrants or any evidence derived from the use of the eavesdropping warrants.