Opinion
February 1, 1991
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Doerr, J.P., Denman, Boomer, Green and Pine, JJ.
Order unanimously reversed on the law, motion denied and matter remitted to Supreme Court for further proceedings on the indictment. Memorandum: The court erred in granting respondents' motion to suppress evidence obtained from a series of wiretaps that led to an indictment against seven defendants involving gambling offenses. The court held that the affidavit underlying the first eavesdropping warrant issued failed to show that less intrusive investigative techniques would fail (CPL 700.15). We disagree. While eavesdropping warrants should not routinely be the first investigative method employed (see, United States v Giordano, 416 U.S. 505, 515; People v Viscomi, 113 A.D.2d 76, 77, lv denied 67 N.Y.2d 658), they do not have to be the last resort (see, People v Campaigni, 151 A.D.2d 1010, lv denied 74 N.Y.2d 845; People v Baris, 116 A.D.2d 174, 187, lv denied 67 N.Y.2d 1050). The issuing Magistrate must be informed of the difficulties in using normal investigative techniques to ensure that eavesdropping is indeed necessary, and should use a commonsense approach, evaluating the application in the context of the investigation's objectives (see, People v Baris, supra; People v Carson, 99 A.D.2d 664, 665). Here, the supporting affidavit of the FBI special agent indicated that visual surveillance had been tried but was inadequate to provide enough specific information about the conduct and participation of all those involved in the suspected bookmaking; that a reliable confidential source reported placing bets at the designated numbers; that a pen register showed a pattern of calls consistent with bookmaking; and that the crime normally takes place by telephone, behind closed doors. We reject the alternative argument of defendants Spano and Domiano that probable cause to issue the warrant was lacking. The controlled call made by a confidential informant, whose reliability was established, in combination with the results of the pen register and the surveillance, provided probable cause (see, People v Gaspar, 132 A.D.2d 990, 992, appeal dismissed 71 N.Y.2d 887).