Opinion
November 27, 1991
Appeal from the County Court of Clinton County (Lewis, J.).
Based primarily upon telephone conversations obtained by eavesdropping surveillance, defendant was indicted on various conspiracy and drug-related offenses. After a lengthy suppression hearing, and upon the denial of his motion to suppress the evidence derived from the eavesdropping, defendant pleaded guilty to criminal possession of a controlled substance in the second degree and was sentenced to an indeterminate prison sentence of five years to life. Pursuant to the negotiated plea agreement, defendant preserved the right to challenge the denial of his suppression motion on appeal; this appeal ensued. We affirm.
The warrant authorizing the initial wiretapping of defendant's telephone was based largely on information secured by means of prior wiretaps placed on the telephones of James Weir and Ronald Baker, the warrants for which were based on the requisite probable cause (People v. Weir, 177 A.D.2d 811; People v. Baker, 174 A.D.2d 815, lv denied 78 N.Y.2d 920). Defendant maintains that the eavesdropping evidence implicating him should have been suppressed because the People failed to comply with CPL 700.50 (3). To the extent pertinent, that statute provides that the person named in the warrant and such other parties to the intercepted communications "as the justice may determine in his discretion is in the interest of justice" are to be given written notice within 90 days of termination of the eavesdropping that their communications were or were not intercepted. In a complementary argument, defendant contends that County Court's order extending the Baker eavesdropping warrant directed that notice and inventory be served upon all aggrieved persons in accordance with CPL 700.50 (3), that he is such an aggrieved person and that he did not receive notice that his conversations with Baker had been intercepted until more than 90 days after the extension order was terminated.
Although he was a party to the intercepted Baker communications, defendant was neither named in the Baker warrant nor entitled to such notice in the interest of justice (see, United States v. Principie, 531 F.2d 1132, 1143, cert denied 430 U.S. 905; United States v. Rizzo, 492 F.2d 443, 447, cert denied 417 U.S. 944). Indeed, granting defendant such notice would clearly have interfered with the contemporaneous investigation being conducted of him. And insofar as the Baker wiretap extension order states that notice and inventory is to be served upon "any and all aggrieved persons in according [sic] with [CPL] 700.05 (3)", we do not interpret this language as constituting a judicial determination that defendant was entitled to such notice, but merely that compliance with CPL 700.50 was to be had. Inasmuch as the People have established strict compliance with this statute, suppression is not dictated on this account (see, People v. Schulz, 67 N.Y.2d 144, 148).
Nor are we persuaded that suppression is mandated because the manner in which defendant was notified of the tap on his telephone did not comport with statutory requirements. The requisite notice documents were served not upon defendant but rather upon his attorney within 90 days of the end of the eavesdropping extension order upon defendant's telephone. Such service was, we believe, "reasonably calculated to give [defendant] the notice required" (CPL 700.50; see, Preiser, 1986 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 700.50 [1991 Pocket Part], at 90). Moreover, it resulted in no prejudice to him (see, United States v. Donovan, 429 U.S. 413, 434; United States v. Fury, 554 F.2d 522, 528-529, cert denied sub nom. Quinn v. United States, 433 U.S. 910, 436 U.S. 931). While it is true that the manner in which the notice was to be given was not prescribed by County Court as required by CPL 700.50 (3), there is no indication that the purposes of the notification requirement, namely, to publicize wiretaps so as to assure the community that they are reasonably employed and that the subject will eventually learn of them and to allow those whose conversations were tapped to test the legality of the underlying warrant, were frustrated (see, People v. Hueston, 34 N.Y.2d 116, 122, cert denied 421 U.S. 947); hence, suppression is not called for (see, People v. Madori, 153 A.D.2d 287; see also, People v. Marino, 49 N.Y.2d 774, 775).
The same reasons we relied upon to reject the contention that the Weir and Baker wiretap applications were issued without a sufficient showing that the People had satisfied a precondition to the authorization of these intercept orders, namely, that alternative investigative methods were unlikely to succeed (CPL 700.15; see, People v. Baker, supra), compel a similar result here. As in Weir's and Baker's cases, the facts set forth in the State Police investigator's affidavit submitted in support of the instant warrant application — the rural location of defendant's home (see, People v. Wood, 125 A.D.2d 823, 825) and resulting limited utility of physical surveillance (see, United States v. DePalma, 461 F. Supp. 800, 813), the drug transactions engaged in were usually consummated behind closed doors (see, People v. Spano, 170 A.D.2d 996, lv denied 77 N.Y.2d 991, 992, 994, 1001), the fact that the participants in this geographically large drug conspiracy were particularly circumspect and dealt only with persons with whom they were familiar (see, People v Bavisotto, 120 A.D.2d 985, lv denied 68 N.Y.2d 912, cert denied 480 U.S. 933), and the lack of information regarding the location of the narcotics (see, People v. Hafner, 152 A.D.2d 961, 962) — support the representations in the warrant application that resort to informants, an undercover police officer, induced cooperation of friends/acquaintances, search warrants, direct police questioning and Grand Jury subpoenas would be unlikely to succeed (see, People v Sica, 163 A.D.2d 541, 542, lv denied 76 N.Y.2d 990; see also, United States v. Fury, supra, at 530; cf., People v. Viscomi, 113 A.D.2d 76, lv denied 67 N.Y.2d 658).
Lastly, we reject defendant's claim that the cocaine found in his automobile should have been suppressed because probable cause to issue the search warrant was lacking. The basis for the search warrant was a State Police investigator's affidavit describing tapped conversations and surveillance of defendant, along with the investigator's sworn recorded statement (see, CPL 690.40) referring to "records and ex parte orders, applications and affidavits filed by [another investigator]" (see, People v Tambe, 71 N.Y.2d 492, 502). Those records incorporate transcripts of defendant's phone conversations, wherein he discusses in cryptic language the buying and selling of drugs (see, People v Baker, supra), as well as descriptions of surveillance of defendant in the company of suspected drug users and sellers, confirming the meaning of the tapped phone conversations. The warrant application revealed that the investigator had personal knowledge of the facts set forth therein (see, People v. Rizzo, 126 A.D.2d 909, 910). This profusion of information constitutes probable cause for it is "sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place" (People v Bigelow, 66 N.Y.2d 417, 423).
Mahoney, P.J., Weiss, Levine and Mercure, JJ., concur. Ordered that the judgment is affirmed.