Opposition — Musto v. New York

October Term, 1976

es

No. 76-1784

THOMAS MUSTO and MICHAEL ASTARITA,

Petitioners,

agatnst

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

On Petition for Writ of Certiorari to the

New York Court of Appeals

: BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Rosert M. MorcentHavu

District Attorney

New York County

Attorney for Respondent

155 Leonard Street

New York, New York 10013

(212) 732-7300

Peter L. Zimroru

Brian Rosner

| Assistant District Attorneys

Of Counsel

TABLE OF CONTENTS

PAGE

FD 1

EE EPR ar OP TCO Ne RATT 2

i eaboasbcioois 3

The Proceedings in the Trial Court ..0.00000000.00000000000... 4

Eavesdropping Warrant 73/72 ...0.00000000...cccccus. 4

The Suppression Motions .00.............0...0.ccccccceeesees 7

Point I—This Court has no jurisdiction to review the

petitioners’ claim that a hearing was required by

the federal constitution ....................cccccecccceeseeeseeeee 9

Point II—The Constitution does not require a hearing

when a defendant alleges that an affiant’s source

of information was 9 Liar ......0..0..0.........ccccccccseeeeeeees 12

RES GTN 2k OP SR A CD 14

TABLE OF AUTHORITIES

Cases:

Henry v. Mississippi, 379 U.S. 443 (1965) ..000000000000..... 10

People v. Alfinito, 16 N.Y. 2d 181 (1965) 2000000... 12

People v. Glen, 30 N.Y. 2d 252, cert. denied, 409 U.S.

RE REESE OUSIRS POSTE PE 12

People v. Slaughter, 37 N.Y. 2d 596 (1975) 0000000... 12

People v. Solimine, 18 N.Y. 2d 477 (1966) 2.000000... 12

Stembridge v. Georgia, 343 U.S. 541 (1952) .................. 9,11

Stone v. Powell, 428 U.S. 465 (1976) 20000... 13

Street v. New York, 394 U.S. 576 (1964) 0000... 9, 10

It

United States v. Armocida, 515 F. 2d 29 (3rd Cir.),

cert. demed, 423 U.S. 858 (1975) 00.00

United States v. Beleulfine, 508 F. 2d 58 (1st Cir.,

1974) |

United States v. . Carmichael, 489 F. ‘2d 983 (7th Cir. =

en bane 1973) ........ serseneusseepanseunuasteniineeliiaaaae

United States v. Dunning, 425 F. 2d 836 (2d Cir.),

cert. denied, 397 U.S. 1002 (1970) 0.0...

United States v. Lee, —— F. 2d —-—, 19 CrL 2193

(0 Se. | Ene

United States v. Luna, 525 F. 2d 4 (6th Cir.), cert.

denied, 424 U.S. 965 (1976) ooo.

United States v. Marihart, 492 F. 2d 897 (8th Cir.),

cert. denied, 419 U.S. 827 (1974) cn...

United States v. Prewitt, 534 F. 2d 200 (9th Cir., 1976)

United States v. Rael, 467 F. 2d 333 (10th Cir.), cert.

denied, 410 U.S. 956 (1973) . a

United States v. Smith, 499 F. 2d 251 (7th Cir., 1974)

United States v. Thomas, 489 F. 2d 664 (5th Cir.),

cert. denied, 423 U.S. 844 (1975) oo.

United States v. Thornton, 454 F. 2d 957 (D.C. Cir.,

1971)

Statutory Provisions

New York Criminal Procedure Law

PR

Articles:

Kipperman, Inaccurate Search Warrant Affidavits As

A Ground For Suppressing Evidence, 84 Harvard

L. Rev. 825 (1971)

PAGE

10, 11

IN THE

Supreme Court of the United States

October Term, 1976

No. 76-1784

$<

Tomas Musto and Micwage. Astagira,

Petitioners,

against

THe Preopte or THE State or New York,

Respondent.

On Petition for Writ of Certiorari to the

New York Court of Appeals

OE ee

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Preliminary Statement

On April 30, 1976, in the New York State Supreme

Court, New York County, Thomas Musto and Michael Asta-

rita each pleaded guilty to Promotinc GaMBLING IN THE

First Decree (N.Y. Penal Law $225.10) and Promorine

GAMBLING IN THE Seconp Decrex (N.Y. Penal Law §225.05).

On July 28, 1976, the court sentenced each petitioner to a

2

three-month term of imprisonment on the convictions for

promoting gambling in the first degree. On the convictions

for promoting gambling in the second degree, each petition-

er was sentenced to a two-month term of imprisonment and

fined $1,000. By orders entered on January 31, 1977, the

Appellate Division, First Department, of the New York

State Supreme Court unanimously affirmed these judgments

without opinions. 55 A.D, 2d 894 (1st Dept. 1977). On

March 16, 1977, leave to appeal the Appellate Division or-

ders to the New York State Court of Appeals was denied.

Musto and Astarita now seek a writ of certiorari to review

the orders of the Appellate Division.

Introduction

Between September and December, 1973, Musto and

Astarita accepted illegal wagers on sporting events. On

eight days in that period, the petitioners accepted wagers in

excess of $100,000. On each day between September 25th

and November 3rd, the petitioners accepted wagers in

excess of $5,000. In a forty-count indictment filed on

August 19, 1974, Musto and Astarita were charged with

one count of conspiracy to promote gambling in the first

degree and thirty-nine counts of promoting gambling in the

first degree. New York County Indictment No. 4072/74.

Part of the investigation in this case consisted of court-

authorized electronic surveillance. New York County

Eavesdropping Warrants 73/72, 73/75 and 73/79. Prior

to trial, the petitioners moved to suppress the evidence

derived from Eavesdropping Warrant 73/72. The peti-

tioners alleged, mter alia, that the prosecutor’s affidavit in

3

support of the warrant was based on the false statements

of an undercover policeman. Without a hearing, the court

(B. Roserts, J.) denied the motion in December 1975. In

January, 1976, the petitioners again moved to suppress the .

evidence derived from Eavesdropping Warrant 73/72, and

the court denied the motion.

On April 28, 1976, Musto and Astarita pleaded guilty to

promoting gambling in the first and second degrees. On

July 28, 1977, the petitioners were each sentenced to con-

current terms of imprisonment of three months and two

months and fined $1,000.

On appeal to the Appellate Division of New York

State Supreme Court, the petitioners asserted that it was

error for the trial court to deny the first suppression motion

without a hearing to determine whether Eavesdropping

Warrant 73/72 was based on the false statements of an

undercover police officer. Specifically, petitioners asserted

that a hearing was required by New York state case law.

Petitioners declined to challenge the trial court’s decision

to deny, without a hearing, the second suppression motion.

Petitioners’ brief in the Appellate Division, at 11.

The Instant Petition

Musto and Astarita ask this Court to grant a writ of

certiorari to review the orders of the Appellate Division,

First Department, of the New York State Supreme Court.

Under New York state law, a defendant is entitled to a

hearing to challenge the truthfulness of the allegations in

the affidavit supporting = warrant. A hearing is required

4

when the defendant challenges the veracity of the affiant to

the warrant. A hearing is not required when, as in the in-

stant case, the defendant challenges the veracity of the af-

fiant’s source of information. Musto and Astarita contend

that this New York rule deprives them of the hearing to

which they are entitled under the Fourth and Fourteenth

Amendments to the United States Constitution. It is ar-

gued that a hearing is constitutionally required whenever

a defendant alieges that an affiant’s source of information

has lied. Petitioners’ claim to this Court was not raised in

the court below.

The Proceedings in the Trial Court

Eavesdropping Warrant 73/72

On September 26, 1973, the Honorable Burton Roserts

issued an eavesdropping warrant which authorized the Dis-

trict Attorney of New York County to intercept conversa-

tions transmitted over telephones with the assigned num-

bers 472-2990, 472-2452 and 744-2218. The telephones were

located in apartment 2B at 324 East 84th Street. The au-

thority to eavesdrop was limited to conversations pertaining

to illegal gambling and to conversations in which Thomas

Musto, Michael Astarita or their co-conspirators were a

party (Eavesdropping Warrant 73/72). On October 10

and November 5, 1973, Justice Roperts renewed and

amended the September warrant (Eavesdropping War-

rants 73/75 and 73/79).

The basis for the original warrant, Eavesdropping War-

rant 73/72, was an affidavit submitted by Assistant District

Attorney Ronald Goldstock. The prosecutor stated that he

5

- was investigating an East 84th Street bookmaking opera-

tion managed by Thomas Musto and Michael Astarita. Ac-

cording to the records of the New York City Police Depart-

ment, Michael Astarita was a known gambler who had been

arrested three times for operating a bookmaking ‘‘wire-

room’’ in Manhattan.* Astarita’s known associate was

‘Thomas Musto, who had been arrested four times for oper-

ating wirerooms. Astarita and Musto had been arrested

together twice.

The prosecutor’s affidavit established probable cause

to believe that Musto and Astarita were accepting wagers

over telephones located at 324 East 84th Street. The prose-

cutor averred:

4. A police officer, shield #21590, who is currently

acting in an undercover capacity has informed me that

during the course of his official duties he has occasion

to meet Michael Astarita, and has been taken into his

confidence with respect to his illegal gambling activ-

ities. Astarita told the officer early in September 1973,

that he (Astarita) was about to operate a wireroom

using a telephonic set-up which was designed to in-

sulate him from the action of law enforcement agen-

cies. Aecording to Astarita the set-up involves the

use of two telephones which, while located in apartment

2B of 324 East 84th Street, New York City, are officially

listed in Telephone Company records as having been

installed in another premises. Thus, Astarita noted,

should any investigating agency learn of 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

* A wireroom is a bookmaking operation in which bets are ac-

cepted over telephones.

6

further informed by the undercover police officer that

Astarita disclosed that for bookmaking purpose, he

maintained a third telephone in the wireroom (correct-

ly listed) which would be used for outgoing calls, and

the number of which would not be made available to

customers (A72).*

According to the prosecutor’s affidavit, subsequent in-

vestigation corroborated the information which had been

supplied by the undercover police officer. The records of

the New York Telephone Company indicated that tele-

phones with the numbers 472-2990 and 472-2452 had been

installed on the ground floor at 309 East 83rd Street. A

telephone with the number 744-2218 had been installed in

apartment 2B at 324 East 84th Street. Moreover, surveil-

lance indicated that Musto was connected to the activity in

the 84th Street apartment. Detective Richard Klev in-

formed the prosecutor that, on September 24, 1973, Detec-

tive Klev observed Musto leave the 84th Street building at

2:06 p.m., ‘‘percisely at the close of the afternoon bookmak-

ing hours.’’

Additionally, the application for Eavesdropping War-

rant 73/72 was supported by an affidavit submitted by Po-

lice Sergeant Alfred Welsome. Officer Welsome stated that,

pursuant to an eavesdropping warrant issued in a separate

investigation, officers of the Police Department were eaves-

dropping on two telephones located in a 42nd Street book-

making wireroom. On at least three occasions, clerks in the

42nd Street wireroom had called either telephone number

* Undercover police officer shield #21590 was subsequently iden-

tified as Police Officer John Talt. At the time of his conversation

with Astarita, Officer Talt had assumed the role of a fellow bookmaker.

Officer Talt was still operating in an undercover capacity when As-

sistant District Attorney Goldstock applied for Warrant 73/72

7

472-2990 or 472-2452 and placed bets. On one occasion,

the clerks in the 42nd Street wireroom spoke to an individ-

ual named ‘‘Michael’’ and on two occasions, they spoke to

*¢Tom,.’??*

The Suppression Motions

Prior to trial, the petitioners moved to controvert Eaves-

dropping Warrant 73/72, the warrant which authorized the

interception of conversations occurring over the telephones

in the East 84th Street wireroom. The sole support for the

motion was an affirmation signed by the petitioners’ attor-

ney. Among the reasons for controverting Warrant 73/72,

the attorney alleged that Assistant District Attorney Gold-

stock’s affidavit in support of the warrant was based, in

part, on the false statements of an undercover police officer.

* Telephone conversations originating on the telephones in the

42nd Street wireroom were intercepted pursuant to Eavesdropping

Warrant 73/69. On September 18, 1973, Justice Roperts author-

ized the District Attorney of New York County to intercept conver-

sations transmitted over telephones with the assigned numbers 594-

6466 and 736-2552. The telephones were located in room 744-A at

55 West 42nd Street. The authority to intercept was limited to con-

versation involving illegal ang 5 and conversations in which Frank

Reid, Bucky (LNU), Larry (LNU) or their coconspirators were a

party (Eavesdropping Warrant 73/69).

Probable cause for the eavesdropping warrant was established by

affidavits submitted by Sergeant Welsome, F.B.I. Agent Maurice

Roussell and Assistant District Attorney Goldstock. Sergeant Wel-

some stated that officers under his command had, among other things,

occupied a room across the street from room 744-A and made detailed

observances of activity indicative of bookmaking. Agent Rousselil

stated that he had been told by an informant, whose previous informa-

tion had resulted in twenty convictions, that the informant had recently

called telephone numbers 594-6466 and 736-2552 to discuss gambling

matters with Bucky (LNU) and Larry (LNU). According to Agent

Roussell’s affidavit, Bucky told the informant that Frank Reid was

the manager of the 42nd Street wireroom. Assistant District Attor-

Goldstock stated that he was in charge of the investigation of

Frank Reid’s gambling activities.

8

As previously noted, the prosecutor’s affidavit contained

information received from an undercover police officer.

According to the prosecutor’s affidavit, Astarita had told

the officer, who was disguised as a fellow bookmaker, that

Astarita was about to operate a wireroom in apartment 2B

at 324 East 84th Street.

In the affirmation supporting the motion to suppress,

the petitioners’ attorney alleged that the undercover officer

had lied to the prosecutor. Specifically, the attorney alleged

that ‘‘the conversation that the undercover police officer

related to Mr. Goldstock never did take place and that if in

fact said officer did have information, it was not as a

result of any conversation with Michael Astarita.’’ The

attorney described the basis for his allegation as follows:

‘*These allegations by the undercover police officer are[,]

based upon information and belief, investigation and con-

versations with the defendant, perjurious, in that they did

not in fact take place.’’

On December 8, 1975, Justice Roperts denied the defend-

ants’ motion. Initially, the court noted ‘‘that to obtain a

hearing on the issue of perjury the defense, which has the

burden of proof, must allege facts which throw doubt on

the veracity of the allegations in support of the warrant.’’

The court then held that the affirmation of the defendants’

attorney was ‘‘not a sufficient factual basis upon which to

predicate a hearing.’’ The motion to controvert Warrant

73/72 was denied.

Subsequently, the defendants again moved to controvert

Warrant 73/72. The grounds asserted in that motion are

not relevant to the issues in this petition. On March 3, 1976,

9

Justice Roserts denied, without a hearing, the defendants’

second suppression motion. The trial court’s denial of the

second motion was not challenged on petitioners’ appeal in

the New York State courts.

POINT I

This Court has no jurisdiction to review the peti-

tioners’ claim that a hearing was required by the fed-

eral constitution.

One who petitions this Court to review the judgment of

a state court must establish that the Court has jurisdiction

to do so. Street v. New York, 394 U.S. 567, 581-82 (1964) ;

Stembridge v. Georgia, 343 U.S. 541, 547 (1952). Petition-

ers seek to invoke the jurisdiction vested in this Court by

28 U.S.C. §1257 (3). Petition at 3.* Under this provision,

petitioners are required to demonstrate that the state court

judgments which they ask this Court to review rested upon

federal grounds. Indeed, where ‘‘it appears that the judg-

ment [of the state court] might have rested on a non-

federal ground,’’ this Court has held that it has no juris-

diction. Stembridge v. Georgia, 343 U.S. at 547 (emphasis

in the original). To give effect to this requirement, the

rules of this Court require that one who petitions the Court

for certiorari must state ‘‘the way in which [the federal

questions] were passed upon by the [state] court.’’ Su-

preme Court Rules, rule 23 (1) (f).

* We presume that petitioners’ reference to 28 U.S.C. §1257(2),

which empowers this Court to review state court decisions by appeal,

is a mistake. Petition at 3. At every other point in their petition,

Musto and Astarita characterize the instant case as a petition for a

writ of certiorari.

10

Petitioners have not, and cannot, satisfy this require-

ment. There is no indication that the state appellate court

dealt with petitioners’ federal claim. In the trial court,

petitioners argued that a hearing to controvert the war-

rant was required by New York state case law. In the

Appellate Division of the Supreme Court, petitioners ar-

gued that, by denying their motions without a hearing, the

trial court had misinterpreted New York state case law.

In arguing that a hearing was required, petitioners did not

even refer to the federal constitution. Petitioners’ brief

to the Appellate Division at 4-15. In short, the federal claim

which petitioners seek to raise before this Court was never

presented to the Appellate Division, First Department.

Therefore, this Court has no power to consider that claim.

Street v. New York, 394 U.S. at 582, supra.

Even if the federal claim had been raised, this Court

has no jurisdiction since the Appellate Division order might

have rested on an independent and adequate state ground.

A defendant in New York State is not automatically en-

titled to a suppression hearing. The defendant’s motion

to suppress ‘‘must state the ground or grounds of the mo-

tion and must contain sworn allegations of fact, whether of

the defendant or of another person or persons, supporting

such grounds.’’ N.Y. Criminal Procedure Law §710.60 (1).

The purpose of this rule is to effectuate New York State’s

interest in discouraging the waste engendered by baseless

pre-trial hearings. See generally Henry v. Mississippi, 379

U.S. 443 (1965).

In the instant case, petitioners’ attack on the credibility

of the affiant’s source of information was supported solely

by an affirmation of their attorney. In an affirmation sub-

11

mitted in support of the motion to suppress, petitioners’

counsel asserted that the ‘‘allegations by the undercover

police officer are[,] based upon information and belief, in-

vestigation and conversation with the defendant, perjurious,

in that they did not in fact take place.’’ The trial court

held that counsel’s conclusory allegation lacked a clearly

stated factual basis. Therefore, pursuant to N.Y. Criminal

Procedure Law section 710.60 (1), the allegation was

deemed insufficient to warrant a hearing.

Although the Appellate Division did not write an opin-

ion, it is likely that the Appellate Division orders were

based on the trial court’s explicit determination that the

allegation in support of petitioner’s motion was too vague

to require a hearing. The New York statutory provision

which requires that allegations be supported by facts is

distinct from the New York rule, based on case law, which

requires that allegations of perjury be directed at the affiant

and not at the affiant’s source of information. Since the

orders of the Appellate Division might have rested on a

statutory provision which is not challenged in this petition,

this Court has no jurisdiction to review petitioners’ federal

claim regarding the New York rule on perjury. Cf. Stem-

bridge v. Georgia, 343 U.S. 541, 547 (1952).*

* Petitioners assert, however, that the trial court’s determination

regarding the factual sufficiency of defense counsel’s allegations was

wrong. Petition at 15, 16. Petitioners do not argue that N.Y. Crim-

inal Procedure Law section 710.60 (1) violates the federal constitu-

tion by requiring that defendants make concrete factual allegations

in order to be entitled to a hearing. Rather, petitioners seem to argue

that the New York trial court erroneously applied New York statu-

tory law. The mere fact that a case might have been wrongly decided

is, of course, not sufficient to invoke the jurisdiction of this Court.

In any event, the trial court correctly decided that counsel’s alle-

gations were, under New York law, too vague to warrant a hearing.

(footnote continued on next page)

12

POINT II

The Constitution does not require a hearing when

a defendant alleges that an affiant’s source of informa-

tion was a liar.

A New York state defendant is entitled to a hearing

when he alleges that the allegations in support of a warrant

are perjured. However, a hearing is required only when

the defendant ‘‘attacks the veracity of the * * * affiant,

and not where * * * the credibility of the source of in-

formation is challenged * * * [A hearing] is only available

to the defendant who claims that the affiant has perjured

himself.’’ People v. Slaughter, 37 N.Y. 2d 596, 600 (1975) ;

People v. Glen, 30 N.Y. 2d 252, 262, cert. denied, 409 U.S. 849

(1972) ; People v. Solimine, 18 N.Y. 2d 477, 479-80 (1966) ;

People v. Alfinito, 16 N.Y. 2d 181, 185-86 (1965). Musto

and Astarita contend that this New York rule deprives them

of the full and fair hearing to which they are entitled under

the Fourth and Fourteenth Amendments.

The rule of the New York Court of Appeals is similar to

the rule of every federal Court of Appeals. A hearing is

required when the defendant challenges the credibility of

the affiant. A hearing is not required when the defendant

attacks the credibility of the affiant’s source of information.

See United States v. Belculfine, 508 F. 2d 58, 63 (1st Cir.

As the trial court held, counsel’s affirmation was “enshrouded in

claims of ‘information and belief’ and ‘investigation’.” It was im-

possible to determine whether the allegation was based on some vague

“information and belief,” or an investigation (the details of which

were not disclosed), or a conversation with the defendant. In short,

the source of defense counsel’s affirmation was deliberately obscure

and, therefore, insufficient.

13

1974) ; United States v. Dunnings, 425 F. 2d 836, 839-40 (2nd

Cir.), cert. denied, 397 U.S. 1002 (1970); United States v.

Armocida, 515 F. 2d 29, 41 (3rd Cir.), cert. denied, 423 U.S.

858 (1975); United States v. Lee, F. 2d ——, 19 CrL

2193 (4th Cir. 1976); United States v. Thomas, 489 F. 2d

664, 669-70 (5th Cir.), cert. denied, 423 U.S. 844 (1975);

United States v. Luna, 525 F. 2d 4, 8-9 (6th Cir.), cert. de-

nied, 424 U.S. 965 (1976) ; United States v. Smith, 499 F. 2d

251, 255 (7th Cir. 1974) ; United States v. Marihart, 492 F.

2d 897, 899-900 (8th Cir.), cert. denied, 419 U.S. 827 (1974) ;

United States v. Prewitt, 534 F. 2d 200, 202 (9th Cir. 1976) ;

United States v. Rael, 467 F. 2d 333, 336 (10th Cir.), cert.

denied, 410 U.S. 956 (1973) ; United States v. Thornton, 454

F.. 2d 957, 967-70 (D.C. Cir. 1971).*

The reason for this rule is obvious. The narrow purpose

of the exclusionary principle is to deter government offi-

cials from engaging in unreasonable searches and seizures.

This purpose is not furthered by suppressing evidence

merely because an informant gave false or inaccurate in-

formation to a prosecutor-affiant who had a firm basis for

crediting the accuracy of both the informant and his infor-

mation. Cf. Stone v. Powell, 428 U.S. 465, 486-87 (1976) ;

see also Kipperman, Inaccurate Search Warrant Affidavits

* Where the defendant alleges that an affiant has recklessly mis-

stated a fact, most federal Courts of Appeals have held that the

defendant is entitled to a hearing. See e.g., United States v. Car-

michael, 489 F. 2d 893, 988-89 (ith Cir. en banc 1973). The New

York Court of Appeals has never ruled on a situation involving

allegations that an affiant’s statements were reckless rather than per-

jurious. In any event, the New York rule and the federal rule is

identical regarding the issue in this petition. When a defendant al-

leges that a warrant was issued on the basis of perjurious or reckless

statement, the defendant, in order to be entitled to a hearing, must

direct his allegations at the affiant and not, as in the case at bar, at the

affiant’s source of information.

14

As A Ground For Suppressing Evidence, 84 Harvard L.

Rev. 825, 830-31 (1971). To require a hearing on the facts

of this case would not greatly deter unlawful government

activity but would increase the number of pre-trial proceed-

ings unrelated to the determination of guilt or innocence.

In sum, the lower courts unanimously accept the rule

attacked by petitioners. The unanimous acceptance is

founded on sound reasoning. Therefore, there is no reason

for this Court to review this case,

Conclusion

The petition should be denied.

Respectfully submitted,

Rosert M. MorcentHau

District Attorney

New York County

Peter L. ZimrorH

Brian Rosner

Assistant District Attorneys

Of Counsel

July, 1977.