Petition — Musto v. New York

IN THE ,

SUPREME COURT OF THE‘UNITED STAT

OCTOBER TERM, 1976

No. 6" 1784

THOMAS MUSTO and MICHAEL ASTARITA,

Petitioner,

-against-

THE PEOPLE OF THE STATE OF NEW YORK,

Respondents,

THE SUPREME COURT OF THE STATE OF

NEW YORK, APPELLATE DIVISION, FIRST

JUDICIAL DEPARTMENT

EVSEROFF & SONENSHINE

Attorneys for Petitioners

186 Joralemon Street

Brooklyn, New York 11201

WILLIAM SONENSHINE

JEFFREY RABIN

Attorneys

Members of the Bar of the Supreme

Court of the United States

PO VEL

INDEX

PAGE

I 2

THE GROUNDS UPON WHICH

THE JURISDICTION OF THIS

COURT IS INVOKED........... 3

THE QUESTIONS PRESENTED

Pa IK 5 065% 4c ndeeed's os 3

THE CONSTITUTIONAL

PROVISIONS AND STATUTES

coe gE Gae n 4

A CONCISE STATEMENT OF

THE CASE AND THE MATERIAL

FACTS PERTINENT TO THE

CONSIDERATION OF THE

QUESTIONS PRESENTED...... 4

THE STATES OF THE PRO.-

CEEDINGS IN WHICH THE ISSUES

INVOLVED WERE RAISED AND

THE MANNER IN WHICH THEY

WEREED PAAMEEEEDe 6 che csccdeccecs 6

ARGUMENT AMPLIFYING

THE REASONS RELIED ON

FOR ALLOWANCE OF THE

| RE a ee pny eee 6

INDEX ( Continued )

PAGE

ARGUMENT 6

POINT ONE

~The Tower court violated

the petitioners constitutional rights

when it denied them a hearing upon

their motion to controvert an

eavesdropping warrant.

é

&

4

f

:

i

-ii-

AUTHORITIES CITED

People v. Alfinito, 16 N.Y. 2d

181, 264 N. Y.S. 2d, 243, 211

Pte BOING dab6 6 bas ecseeesceces

People v. Slaughter, 37, N.Y.

ee Gee Ch a wemnes once oc peveees

People v. Glen, 30 N. Y. 2d

252 (1972) cert den. 409 U.S. 849

People v. Solimine, 18 N.Y. 2d

GFF Sy ee Reker couch decor eseceecs

People v. Gilligan, 80, Misc.

Se A ORNS HEH ow ds cceyee esses

People v. Childers, 54, Misc. 2d

SP 48666644 60s eRddEs 2000

iii -

PAGE

sehen 9

A-

D.

E.

APPENDICES PAGE

OPINION OF MR. JUSTICE

ROBERTS DENYING MOTIONS

FOR SUPPRESSION, ETC., ............

OPINION OF MR, JUSTICE

ROBERTS RECONSIDERATION

OF OPIN. .. os0ssb06s00s seen

CERTIFICATE OF THE COURT

OF APPEALS DENYING LEAVE TO

STATUTES OF THE STATE OF

NEW YORK AND CONSTITUTIONAL

8 ee rs

-iv-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No

THOMAS MUSTO and MICHAEL ASTARITA,

Petitioners,

-against -

THE PEOPLE OF THE STATE OF NEW YORK,

Respondents.,

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF ~—

NEW YORK, APPELLATE DIVISION, FIRST

JUDICIAL DEPARTMENT

To the Honorable, the Chief Justice and the

Associate Justices of the Supreme Court of

the United States:

Petitioner prays that a writ of certiorari be

issued to review the judgment of the Supreme Court

of the State of New York, Appellate Division, First

Judicial Department, entered in the above entitled

matter On January 31, 1977.

oj-

A. OPINION BELOW

The trial Court rendered two opinions

below which are the subject of the instant pro-

ceeding. The first thereof was rendered by Mr.

Justice Burton Roberts on December 8, 1975,

wherein the original motion to controvert and

suppress was denied. Said opinion (not officially

reported) is appended to this petition as Appendix

A.

Thereafter, a motion for reconsideration of the

orizinal motion was granted at which time the court

adhered to it's original determination. This opinion

(not officially reported), is appended hereto as App-

endix B. |

No opinion was rendered by the Appellate Court

which unanimously affirmed the judgment below with-

out Opinion on January 31, 1977. That Court's order

of affirmation of conviction is appended hereto as

Appendix C.

No opinion was rendered by the New York

Court of Appeals since that court denied permission

to appeal to that court by its certificate dated March

16, 1977. A copy thereof is appended to this petit-

ion as Appendix D.

B. THE GROUNDS UPON WHICH

THE JURISDICTION OF THIS

COURT IS INVOKED.

The judgment sought to be reviewed herein

is the judgment of the Appellate Division, First

Judicial Department of the Supreme Court of the

State of New York, made on January 3l, 1977 and

appended hereto as Appendix C.

Jurisdiction in this Court is invoked under

Title 28, United States Code, Section 1257 (2) and

Rule 19, subdivision 1 of the rules of this Court.

C. THE QUESTIONS PRESENTED

FOR REVIEW

The trial court erred in refusing to grant a

hearing upon defense counsel's request for a motion

=

to controvert the eavesdropping orders because of

prejurious statements in the underlying affidavits

submitted in support of said orders.

D. THE CONSTITUTIONAL

PROVISIONS AND STATUTES

INVOLVED

The statutes involved are New York Criminal

Procedure Law, § 710.10, 710. 20, 710. 40 and 710.60

and Amendments IV and XIV of the United States

Constitution and Article 1, § 6 of the New York

State Constitution.

The pertinent portions are set forth in

Appendix E of this petition.

E. A CONQSE STATEMENT

OF THE CASE AND THE

MATERIAL FACTS PER-

TAINING TO THE CONSIDER-

ATION OF THE QUESTIONS

PRESENTED.

Petitioners were convicted on April 28,

1976, upon their pre-trial plea of guilty to Promoting

Gambling in the First Degree and Promoting Gambling

40

in the Second Degree before the Honorable Justice

Roberts in the New York State Supreme Court,

County of New York.

Prior to the entry of the plea of guilty

extensive pretrial motions were made before Mr.

Justice Roberts upon motions to controvert various

eavesdropping warrants issued out of the Supreme

Court of the State of New York, County of New York

to suppress evidence of the conversations intercepted

pursuant to said warrants. The warrants authorized

both telephonic interception and "bugging" of oral

communications.

The trial court denied each and every motion

seeking to controvert the eavesdropping orders without

granting the petitioners a hearing on the issues asserted.

Thereafter, all of these materials were the

subject of a timely appeal to the Appellate Division,

First Department of the Supreme Court of the State of

New York. That Court, on January 3l, 1977, unanimously

affirmed the judgment below without opinion.

Thereafter, a timely application was made to the

New York Court of Appeals seeking leave to

Appeal to that Court. On March 16, 1977, the Honorable

Justice Fuchsberg, an Associate Justice of the Court of

Appeals denied permission to appee! *9 that Court.

Ma

Petitioners are presently incarcerated pursuant ;

to said judgment of conviction.

F. THE STATES OF THE PRO-

CEEDINGS IN WHICH THE

ISSUES INVOLVED WERE

RAISED AND THE MANNER

IN WHICH THEY WERE

RAISED.

The issue with respect to the validity

of the eavesdropping warrants were raised by

timely pretrial motions in accordance with the

Criminal Procedure Law of the State of New York.

G. ARGUMENT AMPLIFYING

THE REASONS RELIED ON FOR

ALLOWANCE OF THE WRIT.

( See next Page )

POINT ONE

THE LOWER COURT VIOLATED

THE PETITIONER'S CONSTITUTIONAL

HEARING UPON THEIR MOTION _

DROPPING WARRANT

The petitioners by way of motions dated

March 28, 1975 and September 25, 1975, sought

to controvert a court ordered eavesdrop which

resulted in the incerception of their conver-

sations. It was the contention of petitioners

that the affidavits submitted in support of said

order contained perjurious allegations without

which the orders would not have been granted.

The court in a decision dated December 8, 1975,

denied petitioners motion without a hearing

holding that a sufficient factual basis had not

been alleged to warrant a hearing.

The law in the State of New York per-

taining to when a hearing on a motion to suppress

or controvert should be granted is of somewhat

recent vintage. The New York Court of Appeals

on October 21, 1965, in the case of People v.

Alfinito, 16 N.Y. 2d 181, 264 N.Y.S. 2d, 243,

2Il N.E 2d 644, stated at page 245, 246;

"There is no controlling auth-

ority in this State although pe rhaps

People ex rel. ae Se Co.

v. Kempner (

N.E. 794, 796, SLBA. N.S.,

970) can be read as authorizing a

later contest of the facts which were

' before the Magistrate when he

signed the warrant. In other jusri-

dictions there are decisions both

ways. Some say that there is no

authority for going behind the war-

rant ( Johnson v. State 163 Tex. Cr.

Rep. | 249; Armstrong

Vv. State, 195, Miss. 300, 15 So. 2d

“38; Burrell v. State. 207 Md. 278.

113 A. 2d 884; United States v. Burnett,

Cir., 53 F. 2d 219, 225; Kenney v.

United States, 81U.S. App. D.C. 259,

157 F. 2d 442). Holdings or suggesting

the contrary are such decisions as

United States v. Nagle, 2 Cir., 34 F. 2d 952

and Kings v. United States, 4. Cir., 282 F

2d 398. In Rugendorg v. United States,

376, U.S. 528, 5372, 4 S. Ct. 825, 827,

ll L. Ed. 2d 887, the Supreme Court seems

to assume although not to hold, that such

an attack on the underlying affidavit may

be made Our comparatively new statutes

(Code Crim. Proc., §§ 813-c, 813-d, 8l3-e,

which set up procedures for motions for

the return of prs perty and suppressin of

evidence alleged to have been obtained by

unlawful search and seizure, do not speci -

fically answer our question since their

rather general language as to "unlawful search

and seizure" and "property claimed to have

been "unlawfully obtained: does not tell us

whether it was intended to permit, on such

a motion, a new inquiry into the facts set out

in the affidavit for the search warrant.

a oe

o@ «

FLEE CLO EAN WEE IORL ES

27 WS 2 VRE,

—— Ber Mae Pe LOM LOLI LOE LG METIS per? oT eG — ‘

spar rer eons

"We hold as follows: first, that § 813-c

of the Code of Criminal Procedure is to

to construed so as to permit an in-

quiry as to whether the affidavit's

statements were perjurious; second,

that the burden of proof is on the

person attacking the warrant (see

United States v. Goodwin, 9 Cir. .

1 F 2d 36; United States v. Napela,

2 Cir., 28 F. 2d 898), and third, that

any fair doubt arising from the testi-

mony at the suppressal hearing as to

whether the affidavit's allegations

were perjurious should be resolved

in favor of the warrant since those

allegations have already been examined

by a jydicial officer in issuing a war-

rant."

The Peoples position was and still is

that a hearing in a case such as this is only re-

quired when a defendant attacks the veracity of

the affiant and not where the credibility of the

source of the information is challenged. In sup-

port of this proposition the People cited to the

State Appellate Courts the Alfinito decision and

subsequent decisions such as People v. Slaughter,

37 N.Y. 2d 596 (1975); People v. Glen, 30 N.Y. 2d

252 (1972), cert.den. 409 U.S. 849, (1972) and

People v. SOlfmine,I8 N.Y. 2d 477 (1966). The im-

position of a standard auch as this effectively precludes

a defendant from satisfactorily attacking an

affiant when his information and knowledge is

based upon conversations with another.

In the instant matter the affiant was

Ronald Goldstock, an assistant district attorney

in the New York County District Attorney's

-9-

Office. Mr. Goldstock submitted his affidavit

to the Lower Court in support of his application

for an eavesdropping warrant wherein he sought

to set forth sufficient probable cause for the

issuance of said order. A reading of said aff-

idavit indicates that Mr. Goldstock's facts

were based upon conversations he had with

other parties and not upon his personal know-

ledge. The petitioners could not challenge the

veracity of the affiant because his affidavit was

in all respects, truthful as far as he was con-

cerned. The proper challenge must be to the

facts and the source of the facts when one is

alleging perjury and not to the individual who is

merely reciting them.

The language of the New York Court of

Appeals in each of the aforementioned decisions

leaves little doubt that the permissable scope of |

when a hearing is authorized is so narrow that it

infringes upon an accused's constitutional rights

as guaranteed by the Fourteenth and Fourth

Amendments of the United States Constitution.

The Court held in said cases as follows:

."' The detective's

statement in this case asserted that

a named informer, then confined in

prison rearthe courthouse had told

the officer that defendant, acting

in concert with the informer, did

burglarize certain business premises

and did take a calculating machine and

a barometer therefrom. The informer

further stated that the machine and the

barometer, as well as a pistol, were

then in the unlawful possession of the

— 2

PIETER nae aa

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. a Cs gf Bat PE He Me}

SOE OES STS .

‘defendant. According to the affidavit

the named informer also stated that

the items were located 4ither at the

home of the defendant, in his automobile

or at his place of business, all of which

were explicitly described by the informer

and verified by the detective. Apart

from general denials of the allegations

made in the detective's affidavit, defend-

ant avers that the aforementioned aff-

idavit was based "' entirely upon the

hearsay Statement of a confessed thief”.

It is plain from a reading of defendant

Solimine's affidavit that he is not

attacking the veracity of the affiant

detective, but rather the credibility of

the named informer who was in prison.

The only objection to the detective s

affidavit is in connection with the source

of the information contained therein, i.

e. a confessed thief of the very articles

for which the search warrant was issued.

Otherwise Solimine's affidavit is barren

of any facts which raise an issue res-

pecting perjury. To warrant the relief

requested, Solimine must throw doubt

upon the truthfulness of the affiant's

allegations. This he has failed to do".

'' Emphasis Added"’)

(PEOPLE v. SCLIMINE 18N.Y. 2d

477, 479, 480, [1966] )

KxXekKKKEKEK KK HK

'' The March motion was properly

denied without a hearing. Before a

hearing is required an issue of fact

=} -

‘must be raised ( People v. Solimine,

18 N.Y. 2d 477, 276N.Y.S. 2d. 882,

223 N.E. 2d 341). Generally, the burden

On a motion to suppress is on a defen-

dant ( People v. Berrios, 28 N.Y. 2d

361, 367, a7 N.Y.S 2d 884, 888, 270 N.

E 2d 709, 712; People v. Alfinito, 16

N.Y. 2d 181, 264 N.Y.S. 2d 243, 256,

211 N.E. 2d 644,646). The affidavits

of Glen and his counsel do not dispute

the facts in the warrant application, the

veracity of the affiant, or the manner in

which the property was seized. On the

narrow question of law whether the aff-

idavit in support on the warrant was

sufficient, the motion was, therefore,

correctly decided. "'

( PEOPLE V. GLEN, 30N.Y. 2d,

252, 262, [ 1973]

* eK KK KKK KE HK

'" As we held in People v. Solimine

(18 N.Y.. 2d 477, 276 N.Y.S. 2d 882, 223

N.E. 2d 341), a defendant is entitled to

a hearing in which he may challenge the

truthfulness of the allegations in the

affidavit supporting a search warrant

only where he attacks the veracity of

the police officer affiant, and not where,

as here, the credibility of the source of

information is challenged ( People v.

Solimine, 18 N.Y. 2d 477, 479,

Alfinito is only available to a defendant

- 12 -

N.Y.

S. 2d 882,883, 223, N.E. 2d 341, supra).

OEP RITES GR ha

"who claims that the affiant has perjured

himself".

( PEOPLE v. SLAUGHTER)

37 N.Y. 2d 596, 600 [1975]

It is thus apparent that prosecutors

throughout the State of New York can easily

thwart any effort by an accused to challenge

a Court Order by having the underlying affidavit

drawn by a third party who merely recites the

hearsay allegations of another.

The Court Order in question at this time

is one signed by the Honorable Burton B. Roberts,

Justice of the Supreme Court of the State of

New York, County of New York, on September

26, 1973 and designated number 73/72. As

previously indicated the affidavit submitted in

support of the application for an eavesdrop was

in the name of an assistant district attorney.

The one substantive assertion in said affidavit

which induced the Court to grant the order was

that detailing an alleged conver sation between

Michael Astarita and an undercover police

officer. The assertion in question stated:

" A police officer, sheild # 21590, who

is currently acting in an undercover

capacity has informed me that during

the course of his official duties he has

had occasion to meet Michael Astarita,

and has been taken into his confidence

with respect to his illegal gambling

activities. Astarita told the officer

early in September 1973, that he

(Astarita) was about to operate a wire-

a e

room using a telephonic set-up which

was designed to insulate him from the a

action of law enforcement agencies.

According to Astarita the set-up in-

volves the use of two telephones which while

located in apartment 2-8 of 324 East 84th

Street, New York City, are officially listed

in Telephone Company records as having

been installed in another premises. Thus,

Astarita notes, should any investigating

agency learn of the numbers 472-2990

and 472-2452, that would have been given

to his customers to call and place their

wagers, the agency would still be unable

to discover the location of the wireroom,

and seize the bookmaking records. I am

further informed by the undercover

police officer that Astarita disclosed that

for bookmaking purposes, he maintained

a third telephone in the wireroom (correctly

listed) which would be used for outgoing calls,

and the number of which would not be made

available to customers."

The New York County District Attorney's

Office conceded during argument before the

Honorable Jacob Fuchsberg, Associate Justice of

the New York State Court of Appeals, at which

time leave to appeal to the New York Court of

Appeals was being sought that without said alle-

gation the Court order could not have been tegally

issued.

It was this specific allegation that was

challenged by the petitioners as being perjurious.

The moving papers which sought to controvert the

orders stated the following:

-14-

°

;

i

bi

;

:

<2 ee oe eee

FETS oD

It is submitted that the conver-

sation that the undercover police

officer related to Mr. Goldstock never

did take place and that if infact said

officer did have any information, it ~

was not as a result of any conversation

with Michael Astarita. These allegations

by the undercover police officer are

based upon information and belief,

investigation and conversations with

the defendant perjurious, in that they

did not infact take place. If in fact,

said allegations were perjurious, there

was insufficient probable cause to war-

rant the interception of conversations of

Michael Astarita".

The Court in ruling that said allegation was

insufficient held that ''Facile statements by counsel,

the source of which is enshrouded in claims of

‘information and belief’ and ‘investigation’ do not

properly raise the perjury issue for a hearing

tae v. Gilligan, 80 Misc. 2d 423, 427; People

Vv. ilders, 54, Misc. 2d 1065, 1070)!"

What the Court neglected to consider was the state -

ment that Said facts were based upon conversations

with the defendant wherein he denied havingthe

conversation set forth in Mr. Goldstock's

affidavit. What stronger factual statement could

be presented than denial of the conversation to

which it was alleged that the petitioner was a

party.

In People v. Gilligan (supra) a case in which

a warrant was attacked and a hearing sought based

upon an alleged perjurious affidavit, defense counsel

sought to show that it was incredible for a police

-15-

officer to state that he smelled the odor of mari-

juana. Concededly, this was mere conjecture

by counsel and was not supported by any factual

allegation. As the Court stated at page 765:

"' No facts are set forth, but only the

belief of defendants’ attorneys that the

statement of the Tuscon officer that he

smelled the odor of marijuana was

incredible...."

In People v. McDonough, supra, it was

held at page 13, that:

'' However this Court is of the opinion

that once an accused has been furnished

with a copy of the order and affidavit, he

must say more than ' I want a hearing’ or’

the statements in the affidavit are per-

jurious.' The defendant's affidavit in

support of a motion challenging a wire-

tap or eavesdrop must allege what state-

ments were perjurious. "

Thus, it is evident that the aforementioned

cases cited by the Court in its decision denying a

hearing upon the question of perjurious statements

wholly support petitioners position that a hearing

should have been granted. The assertions in the

defense motion were not mere supposition or con-

jecture but were based upon a denial of the pet-

itioner Astarita that the alleged conversation took

place. What better factual basis can be set forth

than a denial by an alleged participant in a con-

versation that it took place.

-16-

TRE RE Tree

. _—

~~

All of the aforementioned cases used by

the lower Courts to bolster its position in denying

petitioners a hearing on the perjury issue when

compared to the factual basis set forth in the

defense moving papers do just the opposite and

mandate that a hearing be held. The lower

Courts thus erred in denying petitioners a hear-

ing upon their application on either ground, to

wit; that the moving papers failed to assert a

factual basis sufficient to warrant a hearing or

that a hearing is unwarranted in the instant case

because the veracity of the affiant is not being

challenged.

The unnecessarily restrictive nature of

New York case law places an unconscionable

burden upon an accused thus violating his con-

stitutional rights. There must be a relaxing of

the present standards so that an accused can be

afforded a fair opportunity to establish an in-

fringement upon his own constitutional rights.

«7 -

CONCLUSION

THE PETITION FOR CERTIORARI

4 '

Dated: Brooklyn, New York

June » 1977

Respectfully submitted,

EVSEROFF & SONENSHINE

Attorneys for Petitioner

WILLIAM SONENSHINE, ESQ.

Of Counsel

> Be

we QR Pag” Si

ne eae

VT ENE ALO RI I ey

LITA OI SST SOT ae Le Sey Me:

ros

SPARS SS.

APPENDIX A

SUPREME COURT NEW YORK COUNTY

TRIAL TERM PART 34

THE PEOPLE OF THE STATE OF NEW YORK

-against-

THOMAS MUSTO and MICHAEL ASTARITA,

Defendants

Indictment No. 4072/1974

BURTON B. ROBERTS, J.:

Defendant's motion directed to various

aspects of the wiretapping in this case, which

were returnable March 23, 1975 and September

25, 1975, are consolidated for decision.

Defendants have jointly moved for the

following relief:

A. Suppression of evidence derived from

wiretapping upon the grounds that the initial

eavesdropping order, No 73/72, is not based

upon sufficient probable cause to justify inter-

ception of the defendant Musto's conversations.

B. Controversion of the eavesdropping orders

and suppression of the fruits thereof upon the

grounds that an affidavit in support of the afore-

mentioned order contains perjurious statements.

C. Siippression of evidence derived from wire-

tapping upon the grounds that certain Federal eaves-

-19 -

dropping orders, from which the wiretapping in the

instant case was allegedly derived, were based upon an

insufficient showing of the necessity for eavesdropping.

The foregoing are decided as follows:

A. Sufficiency of the Probable Cause

The Fourth Amendment, as it relates to

eavesdropping, requires probable cause to believe that

a particular described person has committed, is commi-

tting or is about to commit a specific "designated

offense" andthat particularly described conversations

constituting evidence of such offense will be obtained

through electronic surveillance at the location where

the eavesdropping is to occur ( Berger v. New York,

388 U.S. 41; CPL § 700.15). When the crime under

investigation involves bookmaking, this requirement is

satisfied when the facts alleged in support of the eaves-

dropping order warrant a man of reasonable caution

to believe that named individuals are accepting bets

over the subject telephones. ( People v. Gnozzo, 31

N.Y. 2d 134).

There is no challenge here to the sufficiency of the

probable cause for the order in question as regards to the

defendant Astarita. Briefly summarized, the supporting

affidavits, dated Septemver 26, 1973, allege that in early

September, 1973, Astarita, a known bookmaker with

three of nine prior gambling arrests for the operation

of telephone'wWirerooms' in Manhattan confided to an

undercover officer of his plan to open another such

establishment utilizing the premises and telephones which

are the subject of the order. It is further alleged that

on September 19 and 21, 1973, police officers monitoring

a separate bookmaking wiretap overheard the subjects

of that investigation call the telephone numbers which are

the subject of the instant order and place "lay-of" bets

- 20 -

with two individuals, one of whom was referred to

as "Michael"

The only contention raised by the defense

is that there was insufficient probable cause to make

the defendant Musto a subject of eavesdropping. Musto,

the suppprting affidavit allege, was also a known

bookmaker and a known associate of Astarita-- of

Musto's four prior arrests for operating wirerooms,

two occurred with Astarita. It is further alleged

that on September 24, 1973, Musto was observed by

the police leaving the subject premises at 2:06 p.m.,

a time alleged to be "precisely at the close of the

bookmaking hours. Finally, it is alleged that the other

individual who was overheard on the separate wiretap

accepting lay-off bets over the subject telephone on

September 19 and 21 along with "Michael", was named

"Tommy". From the foregoing, it is clear that although

the allegations pertaining to Astarita are stronger,

probable cause did exist to believe that Musto was again

Astarita's co-conspirator in the operation of this

wireroom. Indeed, even if the allegations against Musto

did not amount to probable cause, I would hold that the

interception of his conversations was justified under

the co-conspirator principle announced in United States v.

Kahn (415 U.S.43). This branch of defendant's motion is

therefore denied.

B. Allegations of Perjury

The right of a defendant to attack allegations in

a warrant as perjurious is now elementary (People

v. Alfinito, 16 N. Y. 2d 181). Equally basic is the pro-

position that to obtain a hearing on the issue of perjury

the defense, which has the burden of proof, must allege

facts which throw doubt upon the veracity of the alle-

gations in support of the warrant ( People v. Glen,

30 N.Y. 2d 252; People v. Solomine, 18 N.Y. 2d 477:

CPL § 710.60). - 21 -

The defendant's sole basis for the motion to

controvert here is contained in a statement in an

affirmation by their counsel. Referring to the con-

versation summarized heretofore in which Astarita

is alleged to have told an undercover police officer

the wireroom location and telephone numbers,

counsel states: ‘These allegations by the under-

cover police officer are based upon information

and belief, investigation and conversations with

the defendant, perjurious, in that they did not in

fact take place".

The foregoing statement is not a sufficient

factual basis upon which to predicate a hearing. It is,

in fact, not factual at all. Facile statements by counsel, ._

the source of which is enshrouded in claims of "infor-

mation and belief" and "investigation" do not properly raise ©

the perjury issue for a hearing. ( People v. Gilligan, 80 )

Misc 2d 423, 427; People v. Childers, 54 Misc, 52, 753

People v. McDonough, 5I Misc 2d 1070). Defendant's

motion to controvert the warrant is therefore denied.

C,. The Necessity to Eavesdrop

The Supreme Court in Berger v. New York

(supra), held that the nature of eavesdropping requires

a showing of "''3pecial facts" or "exigent circumstances"

which neccessitate the use of this tool of law enforce-

ment. The statutory embodiment of this principle in

both Federal and New York State law is the requirement

of a showing that normal investigative procedures have

been tried and failed, or reasonably appear to be un-

likely to succeed if tried or to be too dangerous to em-

ploy (18 U.S.C. §2518, subd. 3c; CPL § 700.15, subd. 4).

The defense does not challenge the sufficiency of the

series of wiretap orders directly involved herein

on this basis. However, the defense does contend that

a series of Federal eavesdropping orders, to which the

-22-

defendant Musto concededly has standing to object,

was the source of the separate wiretap (referred to above)

over which lay-off bets to "Michael" and "Tommy" were

overheard, and that this Federal wiretap did not contain

a showing of the requisite necessity for eavesdropping,

thereby tainting instant orders. The People vigorously

deny that the Federal eavesdropping, which terminated

some five months prior to the tap which overheard the

lay-off bets to ''Michael" and 'Tommy", can be con-

sidered the source of the latter because of the time

span. The People also argue that even if the Federal

tap was the source for this separate tap, the lay-off

bets to ''Michael" and ''Tommy" were not really

necessary to the probable cause here. There is merit

in each of these arguments offered by the People. But

the easiest answer is that the showing of necessity

contained in the Federal eavesdropping applications is

clearly adequate. Briefly summarized, these applications

recount the limited information therefore obtained

during that investigation using informants and physical

surveillance, and recount in expert testimony the

unlikelihood of effectively prosecuting the participants

in such a large-scale telephone bookmaking operation

without the use of wiretapping. These well-known diffi-

culties are virtually a sufficient showing of necessity

prima facie, "to inform the authorizing judge of the

difficulties inhearing in the use of conventional tech-

niques" ( United States v. King, 335, F. Supp. 523,535,

mod. 476 p. 28, 494; of United Rates v. Kahn, supra).

This branch of defendant's motion is therefore denied.

Requests for "minimization" and "audibility"

hearings referred to in the instant motion have heretofore

been referred to the trial court.

This constitutes the order and decision of the

Court.

The Clerk of the Court is directed to forward a

9% «

copy of this order to the attorneys for the defendants

and to the Attorney General of the State of New York

Dated: December 8, 1975

o 2 -

APPENDIX B

SUPREM = COURT NEW YORK COUNTY

TRIAL TERM PART 34

THE PEOPLE OF THE STATE OF NEW YORK

- against -

THOMAS MUSTO and MICHAEL ASTARITA,

Defendants.

Indictment No. 4072/1974

BURTON B. ROBERTS, J. :

Defendants move to reargue a motion to

controvert certain eavesdropping orders and sup-

press evidence derived therefrom. Said motion was

heretofore denied by this Court by an order dated

December 8, 1975.

Upon reading the affirmation of Jeffrey A.

Rabin, Esq., dated December 29, 1975, and the

answering affidavit of Assistant District Attorney

Harvey Weinberg, sworn to January 26, 1976, and

all prior papers and proceedings had pursuant to the

original motion, the motion to reargue is denied and

the original decision is adhered to for the following

reasons:

l. Defendants’ motion papers fail to demonstrate

"that additional pertinent facts have been discovered by

the defendant which he could not have discovered with

reasonable diligence before the determination of the

[original] motion" (CPL § 710. 40, subd. 4).

2. Mr. Rabin's affirmation fails to contain alle-

gations which, if true, are sufficient to carry defendants’

“25 -

burden of demonstrating perjury (People v. Alfinito,

16 N.Y. 2d 181). One allegation of perjury hinges

upon whether, with respect to affidavit # 73/69, the

vantage point the police officers said they used aff-

orded them a view of what they said they saw. Mr.

Rabin does not dispute the officers’ ability to observe,

but rather implies that such observation would have been

difficult but not impossible because of the angles in-

volved. The other allegation contained in Mr. Rabin“s

affirmation is that an unnamed employee of the tenant of

the office where the police officers purportedly made

their observations would testify that such observations

never took place. This allegation is so vague and the

omnipresence of such an individual is so incredible that

it, too, is worthless as the predicate for a hearing.

|

3. As this Court has previously stated, the eaves-

dropping order which defendants seek to controvert

(#73/69 ) is incidental and not necessary to the pro-

bable cause for the orders which the District Attorney

intends to use in this case.

This constitutes the decision and order of the

Court.

The Clerk of the Court is directed to forward

a copy of this order to the attorneys for the defendants

and to the District Attorney of New York County.

Dated: March 3, 1976 BURTON B. ROBERTS

J.S.C.

-26-

APPENDIX C

At a term of the Appellate Division

of the Supreme Court held in and

for the First Judicial Department in

the County of New York, on

January 31, 1977.

Present-Hon. Francis T. Murphy, Jr Justice Presiding

Samuel J. Silverman

Myles J. Lane

Paul J. Yesawich, Jr. Justices

leleaatetatatatetatetetetetetetateteteteteteteteteetetetetetetate 4016

THE PEOPLE OF THE STATE OF

NEW YORK, Order of Affirmance

on Appeal from

Respondents, Judgment

-against-

THOMAS MUSTO,

Defendant-Appellant.

An appeal having been taken to the Court by the

defendant-appellant from the judgment of the Supreme

Court, New York County (B. Roberts, J.) rendered on

July 28, 1976, convicting defendant, upon his plea of

guilty, of promoting gambling in the first degree and

promoting gambling in the second degree.

and said appeal having been argued by Mr. William

Sonenshine

of counsel for the appellant, and by Mr. Brian Rosner

of counsel for the respondent ; and due deliberation having

been had thereon,

oe

It is unanimously ordered and adjudged

that the judgment so appealed from be and the same

is hereby, in all things, affirmed.

The case is remitted to the Supreme Court,

New York County, for further proceedings pursuant

to CPL 460. 50 (5).

ENTER

JEROM® L..REINSTEIN

Deputy Clerk

Counsel for appellant is

referred to § 606.5, Rules

of the Appellate Division,

First Department

-28-

APPENDIX D

STATE OFNEW YORK

COURT OF APPEALS

BEFORE: HON. JACOB D. FUCHSBERG,

Associate Judge

THE PEOPLE OF THE STATE OF

NEW YORK,

-against -

THOMAS MUSTO and MICHAEL ASTARITA,

CERTIFICATE DENYING LEAVE

1, JACOB D. FUCHSBERG, Associate

Judge of the Court of Appeels of the State of New

York, do hereby certify that, upon application

timely made by the above-named appellant for

a certificate pursuant to CPL 460. 20 and upon

the record and proceedings herein, ‘ there is

no question of law presented which ought to be

reviewed by the Court of Appeals and permission

to appeal is hereby denied.

Dated: at New York, New York

Mar. ii 16, 1976

JACOB D. FUCHSBERG

Associate Judge

“Description of Order: Order of App. Div. First

Department entered January 31, 1977, affirming judgment

of Supreme Court, New York County, rendered

July 28, 1976.

-29-

APPENDIX - E

§ 710.10

MOTION TO SUPPRESS EVIDENCE

tte

As used in this article, the following terms have the

following meanings:

l. ‘'' Defendant"’ means a person who has been

charged by an accusatory instrument with the

commission of an offense.

2. "Evidence", when referring to matter in the

possession of or available to a prosecutor, means

any tangible property or potential testimony which

may be offered in evidence in a criminal action.

3. "Potential testimony" means information or

factual knowledge of a person who is or may be

available as a witness.

4. "Eavesdropping" means either "wiretapping"

or "mechanical overhearing of a conversation’,

as those terms are defined in §250. 00 of the penal

law.

5. "“Aggrieved'! An "aggrieved person" includes,

but is in no wise limited to, an "aggrieved person"

as defined in subdivision two of section forty-five

hundred six of the civil practice law and rules.

§ 710. 20

MOTION TO SUPPRESS EVIDENG:,

IN GENERAL; GROUNDS FOR.

Upon motion of a defendan: who (a) is aggrieved by

unlawful or improper acquisition of evidence and has

reasonable cause to believe that such may be offered

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FS PITS PL EN Te ee PR RO TT IEE | FN TST RE UR NT LER i

against him in a criminal action, or (b) claims

that improper identification testimony may be

offered against him in a criminal action, a court

may, under circumstances prescribed in this

article, order that such evidence be suppressed

or excluded upon the ground that it:

l. Consists of tangible property obtained

by means of an unlawful search and seizure under

circumstances precluding admissibility thereof

in a Criminal action against such defendant; or

2. Consists of a record or potential testi-

mony reciting or describing declarations or

conversations overheard or recorded by means

of eavesdropping, obtained under circumstances

precluding admissibility thereof in a criminal

action against such defendant; or

3. Consists of a record or potential testimony

reciting or describing a statement of such defendant

involuntarily made, within the mzaning of §60. 45,

to a puclic servant engaged in law enforcement

activity Or to a person then acting under his direction

Or in cooperation with him; or

4, Was obtained as a result of other evidence

obtained in a manner described in subdivisions one,

two and three; or

Fs Consists of potential testimony regarding an

observation of the d2fendant either at the time or place

of commission of the offense or upon some other

occasion relevant to the case, which potential testimony

would not be admissible upon the prospective trial of

such charge owing to an improperly made previous

Me

identification of the defendant by the prospective

witness. ( Effective 2/25/76)

§ 710. 40

MCTION TO SUPPRESS EVIDENCE;

WHEN MADE AND DETERMINED.

l. A motion to suppress evidence must be made

after the commencement of the criminal action in which

such evidence is allegedly about to be offered, and

except as otherwise provided in § 710. 30 and in sub-

division two of this section, it must be made within

the period provided in subdivision one of section 255. 20.

( Effective 9/1/74).

YS The motion may be made for the first time,

when, owing to the unawareness of facts constituting

the basis thereof or to other factors, the defendant did

not have reasonable opportunity to make the motion

previously, or when the evidence which he seeks to

suppress is of a kind specified in $ 710. 30 and he

was not served by the people, as provided in said

section 710.30, with a pre-trial notice of intention to

offer such evidence at the trial. (Eff. 9/1/76)

3. When the motioa is made before trial, the trial

may not be commenced until determination of the motion;

except that in the case of a pre-trial motion made in a

local criminal court, such court, must, upon request

of the people, determine it during trial.

4, If after a pre-trial determination and denial of

the motion the court is satisfied, upon a showing by the

defendant, that additional pertinent facts have been dis-

covered by the defendant which he could not have dis-

covered with reasonable diligence before the determination

of the motion, it may permit him to renew the motion

-32-

before trial or, if such was not possible owing to

the time of the discovery of the alleged new facts,

during trial.

§ 710. 60

MOTION TO SUPPRESS EVIDENCE;

PROCEDURE

l. A motion to suppress evidence made

before trial must be in writing and upon reasonable

notice to the people and with opportunity to be

heard. The motion papers must state the ground

Or grounds of the motion and must contain sworn

allegations of fact, whether of the defendant or of

another person Or persons, supporting such grounds

Such allegations may be based upon personal know-

ledge of the deponent or upon information and belief,

provided that in the latter event the sources of such

information and the grounds of such belief are stated.

The people may file with the court, and in such case

must serve a copy thereof upon the defendant or his

counsel, an answer denying or admitting any or all

of the allegations of the moving papers.

2. The court must summarily grant the motion

if: (a) The motion papers comply with the requirements

of subdivision one and the people concede the truth of

allegations of fact therein which support the motion; or

(b) The people stipulate that the evidence sought to

be suppressed will not be offered in evidence in any

criminal action or proceeding against the defendant.

3. The court may summarily deny the motion if:

(a). The motion papers do not allege a ground

constituting legal basis for the motion; or

(b) The sworn allegations of fact do not as a

matter of law support the ground alleged; excep: that

this paragraph does not apply where the motion is

based upon the ground specified in subdivision three

of section 710. 20,

«$30

4, If the court does not determine the motion

pursuant to subdivision 2 or 3, it must conduct a

hearing and make findings of fact essential to the

determination thereof. All persons giving factual

information at such hearing must testify under oath,

except that unsworn evidence pursuant to subdivision

2 of § 60. 20 of this chapter may also be received.

Upon such hearing, hearsay evidence is admissi ble

to establish any material fact. ( Effective 6/21/75)

5. A motion to suppress evidence made during

trial may be in writing and may be litigated and de-

termined on the basis of motion papers as provided in

subdivisions one through four, or it may, instead, be

made orally in open court. In the latter event, the

court must, where necessary, also conduct a hearing

as provided in subdivision four, out of the presence

of the jury if any, and make findings of fact essential

to the determination of the motion.

6. Regardless of whether a hearing was conducted,

the court, upon determining the motion, must set forth

on the record its findings of fact, its conclusions of .

law and the reasons for its determination.

CONSTITUTION OF THE U.S.

AM=NDMENT [ IV]

The right of the people to be secure in their

persons, houses, papers and effects, against un-

reasonable searches and seizures, shall not be violated,

and no warrants shall issue, but upon probable cause,

supported by oath or affirmation, and particularly des-

cribing the place to be searched and the persons or

things to be seized.

- 34-

CONSTITUTION OF THE U.S.

AM -NDMENT [ XIV]

*** No state shall make or enforce any law

which shall abridge the privileges or immunities

of citizens of the United States; nor shall any

State deprive any person of life, liberty or pro-

perty, without due process of law; nor deny to any

person within its jurisdiction the equal protection

of the laws, ***

ARTICLE I, § 6

*** No person shall be deprived of life, liberty

Or property without due process of law. ***

- 35 -