Opposition Brief — Terraciano v. Smith

=

FILED

JUL 12 197

Pr!

a U. & 73 " 1868

—————

MICHAEL RODAK, JR.,

In THE

Supreme Court of the United States

October Term, 1973.

SALVATORE TERRACI ANO,

Petitioner,

US.

ERNEST MONTANYE, Superintendent of Attica

Correctional Facility,

and

CARL F. DRAXLER, Sheriff of Chemung County,

Respondents.

Brief in Opposition to Petition For Writ of Certiorari

to the United States Couri of Appeals for the See-

ond Circuit.

D. Bruce Crew, IIT,

Chemung County District Attorney,

226 Lake Street,

Elmira, N. Y. 14901

(607) 737-2944.

SS |

Table of Contents.

Page

Statement of Facts 0000000 1

Powwt I. Warrantless administrative search of a

druggist’s required business records and pre-

scriptions is not violative of petitioner’s con-

stitutional rights _... Bs eae ad SIA pnt AOE ia 3

Conflict in the Cirenits 0000 5

Pot Il. The Ne York Public Health Law pro-

visions providing for administrative searches

are limited in time and WE oe 6

Pont II]. The petition for certiorari should be

NNO ei bt

APPENDIX:

Minutes of Hearing. Dated February 17, 1970 _.. 9

Witxess For THE PEopLe:

Theodore Kowitt:

Direct by Mr. Crew 10

Cross by Mr. Castellino 14

Re-direet by Mr. Crew 0! 29

Re-cross by Mr. Castellino 30

WITNESS FOR THE DEFENDANT:

Salvatore Terraciano:

Direet by Mr. Castellino 31

Cross by Mr. Crew 38

eee ee ee eee

‘

ii.

Page

Statement by Mr, sete nto ag ht EA EO 39

Court Reporter's via toca gy E EN 48

TABLE OF CASES.

Biswell v. United States, 406 U.S. 311 (1972) 5, 6

Colonnade — Corp. v. United States, 297 U. 8.

72 (1970) . salennbesecerovi aes ms Se

Fox y. Washington, 236 U.S . 273 fois 8

People v. Cureo Drugs, Ine.. 76 Mise 24 222 4,8

People y. Terraciano, 39 4. po nh, 3

United States y. Davis, 482 Fo 2, son, 17%) 5, 6

Winters vy. New York, 333 U. s.. 507 g

IN THE

Supreme Court of the United States

October Term 1973.

—_

SALVATORE TERRACIANO,

Petitioner,

is,

Menest Monxvanye, Superintendent of Attica Correctional

Facility.

and

Cart F. Draxier, Sheriff of Chemung County.

Respondents.

ee

Brief in Opposition to Petition for Writ of Certiorari

to the United States Court of Appeals for the See-

ond Cireuit.

Statement of Facts.

On April 14, 1969, during business hours, Theodore

Kowitt, a Senior Narcotics Investigator with the New

York State Narcotic Control Bureau went to the phar-

macy operated by the defendant and advised the defendant

who he was and that he was there to conduet an audit

of narcotics, exempted narcotic preparations and depres-

sant and stimulant drugs (R. 108 and 109).’ After being

given the Miranda warnings, the defendant indicated

that he understood and that he wished to call his at-

‘All references herein are made to the Record in this case

in the Appellate Division, Third Department, Appendix to

this Brief.

Giaesicrcrsancicass MEAD | Rew wi

2

torpey which he went to do (R. 109). Kowitt asked the

defendant if it was all right: to begin (R. 125) or if he

had any objection (R. 126). Sometime thereafter, an

individual appeared, stated that he was the defendant’s

attorney and after a conversation with Kowitt left the

pharmacy (R. 109-111). No objection was raised either

by the defendant or his attorney to the examination of

the records by Kowitt (R. i160 and 153). Kowitt con-

ducted his examination of the records on April 14 and

15 and in the course of it took into his possession cer-

tain records maintained by the defendant consisting of

eight (8) narcotic prescriptions (R. 130), 9 depressant

and stimulant prescriptions (R. 131) and 17 records

pertaining to depressant and stimulant drugs (R. 131).

Certain of these records were presented to the Grand

Jury which returned a 29 count indictment against the

defendant.

On February 17, 1970, a Suppression Hearing was

held pursuant to Section 813(¢) of the Code of Criminal

Procedure to determine whether the records removed

from defendant’s premises were lawfully seized (R. 107).

The decision of the Hon. Donald H. Monroe dated Feb-

ruary 24, 1970, denied defendant's motion to suppress

certain evidence (R. 217). On February 27, 1970, the

District Attorney agreed to permit the defendant to plead

to the first and eleventh counts in full satisfaction of the

29 count indictment (R. 79). On October 2, 1970, upon

defendant’s conviction of the crime of Criminal Possession

of a Dangerous Drug in the Second Degree in violation

of Section 220.15, subdivision 1, of the Penal Law of the

State of New York, the defendant was sentenced to an

indeterminate term of imprisonment of not more thaa

three years, and upon the defendant’s conviction of the

crime of Criminally Selling a Dangerous Drug in the

Second Degree in violation of Section 220.35 of the Penal

Law of the State of New York, the defendant was sen-

3

tenced to an indeterminate term of imprisonment of not

more than three years, to run concurrently with the first

above sentence.

Defendant appealed the aforesaid judgment of con-

viction to the Supreme Court, Appellate Division, Third

Department, which by unanimous decision dated June 29,

1972, affirmed the judgment of conviction (People v.

Terraciano, 39 A. D. 2d 1005). Leave to appeal to the

Corrt of Appeals was denied by Charles D. Breitel.

Associate Judge of the Court of Appeals, by order dated

September 15, 1972. Defendant petitioned for a writ

of habeas corpus which was granted by order of the

District Court for the Western District of New York,

John T. Curtin, Judge, 360 F. Sup. 1377 (W. D. N. Y.

1973). The order of Judge Curtin was eppealed to the

United States Court of Appeals for the Second Circuit

and the order granting the writ was reversed, with in-

structions to dismiss the petition.

POINT I.

Warrantless administrative search of a druggist’s re-

quired business records and prescriptions is not vio-

lative of petitioner’s constitutional rights.

Learned counsel for the petitioner in the case at bar

seem to suggest that the facts here coincide in some man-

ner with Colonnade Catering Corp. v. United States,

397 U. S. 72 (1970). However, Colonnade dealt with a

forcible and general search and this court clearly held

that the statute in that case made no provision therefor

and that the search was unconstitutional. In the case

at bar there is no evidence of forcible entry and the rec-

ord is clear that defendant did not object to the search

in question. Furthermore, in the case at bar, there is

Me Be eI,

4

no generai warrantless search, the inspector having au-

dited and seized only those records of the defendant re-

quired to be kept by law,

There is a suggestion in the brief for petitioner that

the fact that the search may have been made for the

purpose of discovering criminal evidence vitiates its

legality in any event. It is respectfully submitted that

the statute under which the search was conducted was

for the purpose of regulating the drug trade in the in-

terests of the public by controlling abuses and excesses

therein. Clearly had the audit heen made routinely and

the evidence in question uncovered there would have

been a basis for criminal liability. It seems unusual to

suggest that when there is reason to helieve that the

abuses and excesses for v-hich the statute was passed

have taken place that the persons vested with the right and

obligation to audit the druggist’s hooks may not then

conduct an audit in compliance with the statute and uti-

lize the evidence obtained in a criminal action. In a

rather well reasoned opinion in a reeent lower coup

case in New York State this very question was con-

sidered. In People v. Curceo Drugs, Inc.. 76 Mise. 24 999

(Kings Co. Crim. Ct. 1973) the eourt stated:

“Given this conflict. of authority, | treat this

Issue as one of first impression. The importance

oF the defendant's interest. in obtaining the pro-

tection of the Fourth Amendinent niust be bal-

anced against the public interest of the ITealth

Department in making an inspection without a

warrant. As T read the Biswell case. there is no

evidence that in making its decision, the Supreme

Court relied on the fact that the inspection was

routine. The court, in Biswell, discussed the im-

portance of frequent unannounced inspections as

a credible deterrent to violations of the act. How-

ever, here the officers knew about the violations

and the obtaining of a warrant would not have

5

seriously undermined the act’s purpose of de-

terring violations. Clearly, it would have been

only a minimal interference with their duties to

obtain 2 warrant. On the other hand, I find that

the defendant’s interest in asserting the Fourth

Amendment right is similarly weak. The defend-

ant clearly knew his books which, by statute he

is required to maintain, would be subject to inspec-

tion by the Health Department at any time. On

balancing these interests, I find, despite the min-

imal inconvenience involved, it would be a mean-

ingless formality to require the Health Department

inspectors to obtain a warrant to inspect records

which, by statute, they have a legal right to search

anyhow.”

Conflict in the Circuits.

Counsel for the petitioner suggest, as a basis for this

court to grant a writ of certiorari, there was a conflict

in decisions handed down in the Second and Ninth Cir-

cuit Courts of Appeal and specifieally refer to the hold-

ing in United States v. Davis, 482 F. 2d 893 (1973). The

factual situation in the Davis case is not at all analogous

to the case at bar. There a search was conducted pur-

suant to the anti-skyv-jacking regu'ations which do not

deal with a traditionally state regulated industry re-

quiring the keeping of written records. Furthermore, the

primary issue in Davis was whether defendant had con-

sented to the search and that question turned on whether

he appreciated his alternative of refusing to be searched

and forfeiting the right to fly. With regard to regulated

industry requiring the keeping of written records the

issue of implied consent has been settled by this court

in Biswell v. United States, 406 U. S. 311 (1972), and

Colonnade Catering Corp. v. United States, supra. There

the court held that consent may be established through

the free and voluntary submission to reasonable regula-

tory authority by the acceptance of a license. There-

POINT II.

The New York Public Health Law provisions pro-

viding for administrative searches are limited in time

and place.

In United States xv. Biswell, supra, and Colonnade

Catering Corp. v. United States, supra, the Supreme

Court indicated that certain administrative inspections

pursuant to statutes, without search warrants, satisfied

the requirements of the Fourth Amendment of the

United States Constitution. As the court below cor-

rectly pointed out, a state statutory scheme must reason-

ably limit the time, place and scope of these inspections.

While the statutes in question in Biswell and Colonnade

/atering Corp. explicitly limited investigations so that

these constitutional requirements were satisfied, as Mr.

Chief Justice Burger pointed out in his dissent in Colon-

nade, page 78, such an explicit statutory limitation is

not always necessary,

“The government agents needed neither a war-

rant nor these statutes to secure entry to this

awe of business since it was as open as any

usiness establishment. that seeks to sell goods

and services to the public. The agents need to

rely on the statutes onl to carry out their duty

to inspect after accomplishing entry.”

Section 3390 of the New York Publie Health Law must

be interpreted narrowly.

T

“Thus, a statute which could have been inter-

preted broadiy, but which was also capable of a

more restricted interpretation, was held not to

violate, per se, the first amendment. This is a

general rule. Statutes should be narrowly inter-

preted to sustain their constitutionality. (See Cam-

eron v. Johnson, 390 U. S. 611 [1968], taken from

Douglas rv. Pitcher, 319 F. 706 [F. D. La. 1970].)”

The New York Public Health Law only authorizes

agents to inspect certain types of records. It does not

give these agents the power to enter any private premise

or public premise when the latter is not open to the

general public.

The words “at all times” cannot he read as generally

authorizing unlimited searches. If the state Legislature

intended to give agents this authority, it certainly would

have chosen more explicit language. These words must

mean that, “at all times” when the agents may lawfully

be on the premises, they may lawfully inspect the ree-

ords.

With regard to whether the New York statute is limited

as to time and place it is respectfully submitted that the

court must consider the statute and the regulations pro-

mulgated thereunder. The statute provides, inter alia,

that the persons permitted to inspect and audit records

shall have access at all times to those records “to be kept

under this Article.” New York Public Health Law,

Sections 3350 and 3390. The regulations provide that

the records required to he kept shall he kept on file at the

pharmacy and since the statute does not provide for

forcible entry it is only reasonable and logical to inter-

pret the statute to provide that the audit shall be con-

ducted during regular business hours and must be con-

ducted at the pharmacy since that is where the records

are required to be kept. (See page 15 of Record.)

Mad Stella Ni etre sar

Ditbiiaicensiire a

Finally, it has been held by this court that a state’s

interpretation of its own statute is binding on the Fed.

eral Courts. For r. Washington, 236 U. S. 273; Winters

*. New York, 333 U. 8. 507. The very statutory scheme in

question has been interpreted as being constitutional in

the Curco Drugs, Inc., case hereinbefore referred to and,

interestingly, that case was referred to and relied upon

by Judge Friendly in the court helow.

POINT Iii.

The petition for certiorari should be denied.

Respectfully submitted.

D. BRUCE CREW, ITI,

Chemung County District Attorney,

Attorney for Respondents,

226 Lake Street,

Klmira, N. Y. 14901

(607) 737-2944.

9

APPENDIX.

Minutes of Hearing, Dated February 17, 1970.

At an adjourned December, 1969, Term of Che-

mung County Court, held in and for the

County of Chemung, at the Chemung County

Courthouse, Elmira, New York, on the 17th

day of February, 1970.

STATE OF NEW YORK, COUNTY COURT,

County or CHEMUNG.

—

PEopLE oF THE State or New York

against

SaLvaToRE TERRACIANO,

Defendant.

—_—>—

Present:

Honorable Donald H. Monroe, Chemung County Judge

& Surrogate.

Appearances :

D. Bruce Crew, IL, Esq., Assistant District Attorney,

Attorney for the People, 226 Lake Street, Elmira, New

York.

Samuel J. Castellino, Ksq., Attorney for Defendant,

414 Fast Church Street, Elmira, New York.

The Defendant, in person.

Mrs. Betty Mitchell, Deputy County Clerk.

Sienographer :

George F. Barringer, County Court Reporter.

rt aD ms we

BEDI AMP ee MO Nee ONS

10

The Court: People of the State of New York against

Salvatore Terraciano. The defendant is present with

counsel, Samuel Castellino, and the People are repre-

sented hy Assistant District Attorney Crew. This is

going to be a hearing.

Mr. Crew: [f it Please the Court, | have this day

served Mr. Castellino with an 813 (f) notice. There isn’t

any question that this comes as a surprise to Sam, and |

have diseussed this with him, and he graciously con-

sented | put in whatever proof I have subject to rights

not only of cross examination but presentation of any

proof you want. ( Ibviously we have no objection to that

at all.

Mr. Castellino: Yes, | would want the record to show

1 would reserve my right to produce any additional evyi-

dence relative to the introduction of testimony with re.

spect to admissions, statements or confessions,

The Court: Proceed,

Mr. Crew: Mr. Kowitt.

(Whereupon, People’s exhibits 1 & 2 marked for identi-

fication.)

THEODORE KOWITT, called ax a witness, having

heen first duly “worn, was examined and testified as fol-

lows:

Examined by Mr. Crew:

Q. What is your full name. sir? A. Theodore Kowitt.

(). And by whom are you employed? A. | am employed

by the New York State Narcotics Control Burean as a

senior narcotic investigator.

Q. Were you so employed on April 14, 19697 A. I was.

Q. And did there come a time on that day that you

had oceasion to go to the Windsor Pharmacy in Horse.

heads, New York, and make the acquaintance of the de-

fendant, Salvatore Terraciano? A. I did.

1}

Q. And when you arrived at the pharmacy on this day,

did yon identify yourself to Mr. Terraciano? A. Yes, |

did.

Q. Did you tell him who yon were? A. Yes, I did.

Q. Did you tell him why you were there and in the

course of telling him why you were there, did you advise

him of any rights? A. Yes, I did.

Q. Will you tell the court what you told him as to the

purpose for which you were there and what you told him

in your own words as to any rights he might have had?

A. I advised Mr. Terraciano that | was conducting an

investigation relative to diversion of controlled drugs

in Chemung County. i stated that I was there to con-

duct an audit of narcotics, accepted narcotic preparations

and depressant and stimulant drugs. 1 advised him that

he did not have to make any statement te me. Anything

he stated to me would be used against him. 1 told him

that he had the right to be represented hy an attorney,

and if he could not afford an attorney, one would he

provided for him. 1 asked him if he understood what I

had just advised him. He stated, “Yes.” 1 asked him

if he wished to call his attorney, and he stated that he

would.

Q. And did he then use the telephone? A. Shortly

thereafter, ves.

Q. And between the period of time he said he would

like to and he used the telephone, did you question him

about any items in the drug store? A. Not to the best

of my recollection. He went to the back of the pharmacy.

and | started taking out my books and records.

Q. All right. And following his making a telephone

call, did there come a time that a third person arrived

at the Windsor Pharmacy? A. Yes.

Q. And did the defendant represent him to you to be

his attorney? A. Yes, he did.

Q. And what, if anything, if you recall, in words or

substance did the attorney say to you relative to your

een oe

ot eho ad re

was

Denarssvcinn Ae

°

12

presence at the Pharmacy? <A. | don’t remember his ex-

act words, but the gentleman who represented himself as

the attorney stated something to the effect that it was

beneficial—first he stated he asked me who T was, [

showed him my identification. He asked me if T was with

the state or federal narcotie bureau. I stated | was with

the State of New York. He stated something in sub-

stance to the effect that it was heneficial or advantageous

that a representative of the nareotic bureau was there

conducting an investigation rather than the regular police,

As I say, | do not recall the exact words that he used.

Mr. Castellino: Well, if the Court please; could

we have a better deseription of this person if the

witness knows his name, who was there, whether

the defendant was present? There is a question

whether such a statement is hinding upon this de-

fendant, of course.

Q. (By Mr. Crew) Was the defendant present at the

time? A. The defendant was present at the time, yes,

Q. Do you know the name of the man who the de-

fendant said was his attorney? A. | do not reeall the

person’s name.

Q. Are you able to describe him at all? A. I do not

recall his features that well, If | remember, he was not

a very tall man. | cannot really reca'l what he looked

like.

Q. All right. Now, after this conversation with this

person, did he leave the premises? A. Yes, he did.

Q. Did you go on to conduct an audit? A. Yes, I did,

Q. Now, during the course of thix audit. did you have

veeasion to examine various purported prescriptions that

were there on the premises? A. Yes, I did.

Q. And while you were doing this, did vou have oc-

casion to ask the defendant whether or not those pre-

scriptions were kept by him in the regular course of his

business at the Windsor Pharmacy? A. Yes, [ did.

13

Q. What «id he tell you? A. He stated that. the

records were his, and he did keep them.

Q. And during the course of your audit, did you have

occasion to remove certain of the records kept by the de-

fendant at his place of business? A. Yes, I did.

Q. And did you advise him and show him those items

or records that you were taking with you? <A. Yes, |

did.

Q. Did you give him a receipt for the records which

you took? A. Yes, | did.

Q. Did you sign that receipt? A. Yes, | did.

Q. Was that receipt also signed by the defendant? A.

Yes, it was. There were two receipts that were made

out. One [ kept, one was given to Mr. Terraciano.

Q. And, were these receipts signed in your presence?

A. Yes, they were.

Q. And I show you People’s Exhibit 1 for identifica-

tion, and | ask vou if that ix an exact Xerox copy of all

the receipts which vou gave to the defendant while you

were conducting this audit? A. Yes. they are.

Q. And, during the course of your investigation, did

you have occasion to note on some of the prescriptions

kept by the defendant at his place of business notations

of alleged or purported refills on the reverse side of the

preseriptions?) A. May ! have that question again?

Q. Yes. Did you have occasion during the course of

your audit to observe on some of the prescriptions kept

by the defendant in his place of business purported re-

fills or notation of refill on the reverse side of the pre-

scriptions? A. Yes, | cid.

Q. Did you have occasion to ask the defendant if those

notations were made by him and kept in the regular course

of his business? A. Yes, I did.

(. What did he tell you? A. He stated that this date

on the reverse side of the prescription indicated that the

prescription had been refilled.

2” ON al oe |

NEEDS de DLA ee

14

Q. And did he state that those notations were made by

him? A. Yes, he did.

Q. And I show you People’s Exhibit 2 for identification,

and I ask you if you recognize that. A. Yes, [ <Jo.

Q. And is that the purported prescription, one of the

purported preseriptions which you took from the defend-

ant’s place of business, one for which you gave him ¢

duly executed receipt? A. Yes, it is.

Q. And with regard to People’s Exhibit 2 for identifica-

tion, did you have occasion to have a conversation with

the defendant having to do with the preparer of that

prescription? A. Yes, I did.

Q. And will you tell the court in words or substance

what the defendant told you with regard to the preparer

or purported maker of that prescription? A. Mr. Ter-

raciano informed me that it was a telephone prescription

that either the physician, Dr. Burke, or somebody in his

office, had phoned the prescription in to him at. the

pharmacy.

Q. And this investigation that you conducted took

place, did it not, on the 14th and 15th days of April,

1969? A. Yes, it did.

Mr. Crew: You're right. 1 offer both those ex-

hibits in evidence.

Mr. Castellino: Well, I'd like an opportunity to

cross examine on that.

Mr. Crew: Yes.

The Court: Yes.

Cross Examination by Mr. Castellino:

Q. Mr. Kowitt, how long have you been with the Nar-

eotie Control Bureau? A. | have been with them since

1965.

Q. Sinee 1965. At whose direction did you go to the

Windsor Pharmacy in Horseheads on April 141 A. I had

received a request for assistance from the state police.

15

Q. Well, whom in particular in the state police? A.

Sr. Investigator Michael Capozzi.

Q. What date did you receive that request? A. Um

sorry. I do not recall the exact date. 1 believe it was

sometime in the beginning of April, 1969.

Q. Well, don’t you have any notation or correspond.

ence? A. It was a telephone call which I had received

from Mr. Capozzi while | was at the Mercury-Comet

dealer. I do not have any record of that with me.

Q. So there was no formal or written request from the

state police? A. No, sir. The initial request was a tele-

phone request from them.

Q. From Mr. Capozzi; is that right? A. Yes, Sir.

Q. And you don’t recall the date or the approximate

date? A. No, I don’t. 1 can secure that information

at a later time, but I don't have it with me.

Q. But it was in the form of request for you to go to

Windsor Pharmacy located in Horseheads? A. It was a

request for assistance in investigation, and it did con-

cern the Windsor Pharmacy in Horseheads, New York.

Q. Now, did there come a time then when you came to

Kimira? A. Yes; yes, Sir.

Q. When in relation to that phone call: couple of days!

A. I believe that I had come to Elmira twice. The first

day I don’t reeall. The second time was on the 14th of

April, 1969.

Q. So you were here one day before the 14th: is that

right? A. Yes, Sir.

Q. Did you confer with Mr. Capozzi then on this date?

A. Yes, I did.

Q. Relative to the Windsor Pharmaey? A. Yes, 1 did.

Q. Did Mr. Capozzi give you certain information rela.

tive to what you were going to look for at the Windsor

Pharmacy? A. No; no, Sir. He asked me to inspect

the records, conduct an investigation relative to any di-

version and to audit the stock of drugs which T mentioned.

Ditton.

16

Q. And this was a blanket investigation; is that right,

of the reeords of the Windsor Pharmaey? A. This was

an investigation of the records, reeeipt and disposition

being maintained at Windsor Pharmacy ; yes.

Q. So vou were not looking for anything in particular

when you went to the Windsor Pharmacy; you ‘were

going to audit the records? A, Audit the records and

any evidence of violations of the Public Health Law.

Q. How long did you spend at Windsor Pharmaey on

auditing the records! A. | had spent approximately two

days on April 14th and . pril 15th, 1969.

Q. And prior to this time, had you ever had occasion

to go to the Windsor Pharmacy and conduct an audit of

the records? A. No, | believe I had been there once

before, just a routine inspection of the records.

Q. Just a routine inspection? A. Yes,

Q. Now, when vou went there on the 14th of April, you

did not have a search warrant; did yon? A. No, Sir; |

did not.

Q. Had you at any tine made application for a search

warrant?) A. No, Sir; I did not.

Q. Did Mr. Capozzi go with you on the 14th to the

Windsor Pharmaey? A, He had entered the pharmacy

with me, stayed a short time and then left.

Q. Did he participate in the investigation at that time?

A. Participate: no, Sir. He witnessed my identifying

myself and initially advising Mr. Terraciano why | was

there and Witnessing my advising him of the rights.

Q. Now, you told him you were there to audit. these

records under what authoritv? A. As a member of the

Nareotie Control Bureau of the State of New York and

pursuant to Article 33 and 38a ‘of the Publie Health

Law.

Q. So you expressly stated to Mr. Terrachno that

you were there to audit these records under the authority

as set forth in the Publie Hesiv Law; is that right? <A.

Yes, Sir.

17

Q. And you so stated this in an affidavit that was sub-

mitted under date of January 9, 19707 A. May I see it?

Mr. Castellino: I'll have this marked,

(Whereupon, Defendant's Exhibit A was marked

for ‘dentification.)

Q. (By Mr. Castellino) Now. 1 show you defendant's

Exhibit A for identification which purports to be a copy,

true copy of an affidavit signed and sworn toby you. Do

you recognize that? A. Yes, 1 do,

Q. And do you recall signing and swearing to that? A.

Yes, T do.

Q). Had you prior to signing this aflidavit had occasion

to read or see the original or affidavit of Mr. Terraciano

attached to certain motion papers in thix proceeding? A.

Not to the best of my recollection, no.

Q). Now, in this affidavit, and specifically with reference:

to the second paragraph which commences on the 14th and

loth days of April, 1969, that you conducted an account-

ing of Narcotic Drugs at Windsor Pharmacy in aceord-

ance with the powers and duties conferred upon deponent

by Articles 33 and 33a of the Public Health Law of the

State of New York: is that correct? AL Yes,

Q. And you, also, state that you conducted aforesaid

accounting and removed the aforesaid records in ae-

cordance with the provisions of such law and Section

80.72 and S180 of Tithe 10 of the Codes, Rules and Rew-

ulations of the State of New York: is that correct? 4.

If it states it: yes, Sir.

Q. And this is the basis of the authority under whieh

you were conducting thix investigation and ynder which

you removed the records: ix that correct?) A. That's

correct.

Q. Now, do you have with you a copy of these codes

and rules and regulations of the state? A. I do, Sir.

Q. Could you, for the benefit of the court and myself,

tell us specifically what the section 80.72 and 81.80 of

Title 10 contains?

PILED IONE PELE SE Rig te Nt dala Me tanta

— anv: re wees

18

Mr. Crew: Your Honor, just for the record,

I’m going to object to that question on the grounds

that this is a code of the State of New York which

is a matter of law. You can take notice of it and

the contents of which you can consider. 1 don’t

see why he should read it into the record,

The Court: Proceed.

Mr. Castellino: I feel it should be part of the

record,

The Witness: You'd like me to read the entire section

80.72?

Q. (By Mr. Castellino) What I’d like you to do is read

that portion or portions of it you’re referring to in your

affidavit in which you Say you removed the aforesaid

records and which you conducted the accounting.

Q. “80.72 Receipts for prescriptions. Narcotic prescerip-

tions which are on file at a pharmacy and whiej may he

required as evidence of a violation in connection with an

investigation by this department shall be released to a

narcotics investigator upon his request and upon furnishing

a receipt therefor on a form provided for that purpose

bearing the notation: Tn order to conform with the F. deral

Harrison Nareotie Act and Section 3322 of the New York

State Narcotic Drug Law, this receipt must be kept on file

for at least two years.”

“81.80 General.

“(a) All records of all transactions concerning fully

controlied (C-1, inventory required) depressant and stimu-

lant drugs required to be kept by a practitioner, manu-

facturer or wholesaler, pharmacy, hospital, nursing home,

convalescent home, home for the aged or other authorized

person shall be kept for a period of two years from the

date of transaction as provided for by Section 3388 of

Article 33(a)} of the Public Health Law.

19

“(b) All records, orders and Prescriptions required by

regulation or Article 33(a) of the Public Health Law

shall be readily available and promptly produced upon

request for inspection by authorized representatives of the

Bureau of Narcotic Control, New York State Department

of Health.

“(c) All such orders, orders and prescriptions required

by regulation or provisions of Article 33(a) of the Public

Health Law shall be maintained at the premises certified or

licensed

“(d) All such records, erders and prescriptions required

to be maintained by regulation or Article 33(a) of the

Public Health Law and which ‘may be required as evidence

of a violation in connection with an i.vestigation by this

department shall be released to authorized representatives

of the Bureau of Narcotic Control, New York State De-

partment of Health upon request and upon furnishing

a receipt therefor.”

Q. Those are the specific rules and regulations that

you referred to in your affidavit: is that right? A. Yes,

sir.

Q. And you, also, referred to articles 33 and 33 (a) of

the Public Health Law; is that correct? A. Yes, I did.

Q. And in doing so, I assume, 1 would like to know,

you obviously are familiar with the contents of Section

3390 of the Public Health Law: is that correct? A. T am

familiar with it. If T may just refer to it. Yes, I am.

Q. You have a copy of Section 3390 of the Public Health

Law before you? A. Yes, I do.

Q. And that’s entitled, “Enforcement”? A. Yes, sir.

Q. And, specifically, with reference to Section 3390, sub-

division 2, does that state that such authorities and their

agents shall have access at all times to all orders on

prescriptions and records to be kept under this article? A.

Yes, it does.

SON PE PANG Bt Tc ty ee)

——

—_

20

Q. Were you, in part, relying on Section 3390 of the

Public Health Law when you went to the Windsor Phar-

macy? A. Yes. Yes, I was.

Q. Is there any other specific section in Article 33 or

33(a) of the Public Health Law upon which you relied

in conducting this audit and removing the records from

the Windsor Pharmacy? A. The other section would be

3350 of Article 33(a).

Q. And that is entitled what? A. “Enforcement.”

Q. And does that contain provisions comparable to

those set forth in 3390? A. Yes, sir: it does,

Q. Are they identical provisions, or are they different

in some respect? A. I don’t—I’d have to compare the

two.

Q. You did, in fact, also rely on Section 3350 of the

Publie Health Law: is that right? <A. Yes, sir.

Q. And doesn’t 3350, subdivision 2, contain a state-

ment that such authorities and agents shall have access

to all prescriptions set forth under this article? A. Yes,

sir; it does.

Q. Now, Mr. Kowitt, when you went to the Windsor

Pharmacy on April 14th of °69, were you not aware, sir,

that Salvator Terraciano had been arrested previously

by Investigator Capozzi as the result of Mr. Capozzi’s at-

tempt to examine his records? A. Yes, sir: T was aware

of that.

Q. You were aware of that: were you not? A. Yes,

sir: IT was.

Q. Had you discussed this with Investigator Capozzi?

A. Senior Tnvestigator Capozzi mentioned the facet to me.

I did not, T do not recall holding a detailed diseussion

about it. I was advised of the fact, yes.

Q. So you knew there was a criminal charge pending

against Mr. Terraciano: isn’t that correct? A. Yes, sir:

it is.

Q. Now, by the time the attorney, and incidentally, with

respect to this attorney yon claim was present on April

21

14th, you recall that was not myself; do you? A. To

the best of my recollection, it was not you, sir.

Q. And, again, this was done in reliance on these Bec-

tions and regulations that you cited? A. Yes, sir.

Q. Did you do anything in addition to these purported

warnings that you gave Mr. Terraciano? Did you tell him

what was your purpose in being there that day? A.

To the best of my recollection, T do not recall giving him

any other purpose.

Q. You didn’t tell him that you were there at the re-

quest of the State Police? 4. Not to the hest of my reeol-

lection, no.

Q. Did vou tell him yon were there to conduct a routine

audit? A. No, sir: T did not.

Q. There isn’t any question, Mr. Kowitt. that you didn’t

at that time ask Mr. Terraciano for permission to go into

that area; did you? A. | stated. “Ts it okay.” or some-

thing to the effect in substance, “Ts it okay if T begin?”

Q. Tf you begin? A. If J hegin inspecting records and

conducting the andit now.

Q. But on the Presentation of your credentials. you

walked right in? <A. No, sir.

(). What did von do? A. J walked over, identified my-

self, stated the purpose of my being there. 1 advised him

of his rights, and then | stated. “Do von have any objec-

tions?”

Q. Now. you stated, “Do you have any objections”?

A. Or may. T do not recall the exact words that were

used.

Q. But you were relying on these sections and rules,

which on their face give vou the authority to enter a

Sr

Say

Pete ate

22

place where prescriptions are kept and audit them; don’t

you? A. Yes, sir. The reason I stated this was there was

some question as to whether he wished to call his attorney

or not.

Q. And you, also, knew, did you nct, that he had re-

fused Investigator Capozzi permission to examine these

records just a few days previously? A. I knew that he

denied them that, but I did not recall the exact date.

Q. Now, how long did this audit take? A. The in-

vestigation, consisting of inspection of records, eonduct-

ing of the audit, conducted approximately two days on

the 14th and 15th of April, 1969.

Q. Two full days? Partial days or how long? A. On

the 14th it was part of the morning, the entire afternoon

and part of the evening; and on the 15th it was the

morning and the afternoon.

Q. Did you examine each and every prescription on

file there? A. No, sir. T examined all of his narcotic

prescriptions, all of his depressant and stimulant prescrip-

tions for the time period that T had specifically asked

for.

Q. And what time period was that? A. May 1 check

the days? Sir, I do not have the dates, but to the best of

my recollection it was within a two-year period from the

date I had come in.

Q. When you went there, were you armed with any

specific information relative to certain names or dates

that you would be looking for? A. Not to the best of my

recollection; no, sir.

Q. Well, you pulled and took with you certain records;

did you not? A. Yes, sir: I did.

Q. And was this based upon what your investigation

developed during that period, or was it based upon in-

formation that you were requested? A. This was based

upon my own investigation which I conducted on the

14th and 15th of April.

23

Q. And without regard to any other information that

may have been given to you by Investigator Capozzi; is

that right? A. Not to the best of my knowledge, sir.

Q. Not to the best of your knowledge. A. Not to the

best of my recollection.

Q. You just conducted the investigation in April; did

you not? A. Yes, sir; I did.

Q. You're having trouble and difficulty remembering

today? A. To the fact I just stated: yes, sir.

Q. Did you receive any written memoranda or request

at all from Investigator Capozzi or the District Attorney's

Office, Mr. Kowitt, prior to going there? A. No, sir.

Q. Well, with respect to People’s Exhibit 2 for identifica-

tion, this purports to be what? A. This purports to be a

telephoned prescription for a stimulant drug.

Q. And what was your reason in taking that with you?

A. Two reasous: I[t appeared suspicious to me, because

number one, it was on the blank of a pharmacy in Florida:

namely, the Alonzo Drug Store in Tampa, Florida. And

number two, the fact that the prescription had been re-

newed five times, since it wax a telephone prescription.

Q. So, on the basis of suspicion, then, vou removed that;

is that correct? A, Yes, sir.

Q. And how about with respect to these other items that

you took, these other records; were they, also, removed

because of certain suspicions on your part? A. Either

for suspicion or evidence a violation of the Public Health

Law. ~

Q. Either upon suspicion or for evidence to be used in a

possible violation; is that right? <A. Yes, sir.

(). No question about that; is there? A. No, sir.

Q. You were there seeking evidence: were you not?) 4.

I was there to conduct an investigation.

Q. And to obtain any evidence that you might? A. And

to remove any pertinent evidence to that investigation:

yes, sir.

Nee 4

Ne ee a

a Se ee eee

24

Q. And all this without any benefit or direction of a

search warrant; right? A. That’s correct, sir.

Q. Now, I show you People’s Exhibit 1 for identifica -

tion, and in the upper left hand corner there is the date

4-14-69 and a statement that, “I have this date removed

eight narcotic prescriptions from the filex of Windsor

Pharmacy,” and then the location and the dates 5-18-68

to 6-28-68; is that correet? A. That’s correct.

(. Now, with respect to those particular preseriptiens,

was there any specific or particular reason why they

were removed as opposed to others that were not? A.

Yes, sir. Before 1 inspected the prescriptions files, |

inspected the narcoties tax stamp and opium order forms.

The opium order forms revealed that narcotic drugs had

not been purchased by Mr. Terraciano before J uly of 1968.

Q. So it was on that basix that you removed these

some eight prescriptions: is that right? A. Yes, sir.

Q. Now, over to the right hand corner of the first page ix

what purports to be another receipt; is that correct? A.

Yes, sir.

Q. And what does that recite? A. The receipt states

that I removed nine depressant and stimulant preserip-

tions from the files of Windsor Pharmacy dated 7-19-68

to 12-20-68, and the prescriptions called for a total of

Seconai, 11% grain, number 88: and Dexedrine Spansules,

15 milligrams, number 1340, and refills through 4-10-69.

Q. Were those nine in addition to the eight, other eight

that you previously deseribed? A. Yes, sir.

(). So with respect to the other receipts, do these all

record various other items and records that were removed

by you? A. Yes, sir.

Q. And the second page in the lower right hand corner,

receipt dated 4-15-69 recites that you removed some 17 DS

records; is that correct? A. Yes, sir.

Q. Those are, DS refers to what? A. Depressant and

stimulant.

The Court: What?

*

25

The Witness: Depressant and stimulant.

Q. (By Mr. Castellino) Were these prescriptions or

records or what? A. May I see the receipt, sir? These

were 12 depressant and stimulant drug invoices and five

copies of letters from the Windsor Pharmacy relative to

allegecl returns of depressant and stimulant drugs.

Q. Now, Mr. Kowitt, did there come a time that you

appeared before the Grand dury in Chemong County rej-

ative to your investigation and audit of the records of the

Windsor Pharmacy? A. Yes, | did.

Q. Do you recall when that was? A. I believe that the

Girand Jury had been held on August 11, 1969.

Q. And did you, sir, testify before that Grand Jury

relative to certain of these records, prescriptions or writ-

ten memoranda that you removed from the Windsor Phar-

macy? A. Yes, I did.

Q. Dio you recall, sir, how many of the records, prescrip-

tions or memoranda that you removed from the Pharmacy

that you testified to before the Grand Jury? A. No, sir:

I do not.

Q. 1 show you with reference to People’s Exhibit 2

for idemtification: do you recall testifying with respect to

that exhibit before the Grand Jury? A. Yes, 1 do.

Q. Was there anyone else with you at the Windsor

Pharmacy other than the person you deseribed on the

first day: anyone else assist you in this audit or investiga-

tion? A. On the Mth and 15th of April; no, sir.

Q. Did you confer with Mr. Capozzi follow ag your

audit om the 14th and prior to your returning on the 15th?

A. Yes, 1 did: on two oceasions after that.

Q. Relative to certain records that you had removed or

observed? <A. Regarding the records and the investigation

which T had conducted?

Mr. C‘rew: No. He wants to know, Ted, after the 14th,

but before you returned on the L5th, did you confer with

Capozzi.

Os nn + nee oe

Wert) oie oe .'d

BOR aba WR eh dt

2

The Witness: Oh, no. I do not believe so.

Q. You don’t believe so? A. No, sir.

Q. Are you saying you didn’t?’ A. To the best of my

recollection; no, sir.

Q. Did you confer with any member of the District

Attorney's office following the 14th investigation and your

return on the 15th? A. Not to the best of my recollection.

Q. Did you make any written notes of this audit? A.

Yes, I did.

Q. Do you have those with you?’ A. They are in my

Office.

Q. And your office is where? A. 119 Kast Main Street,

Rochester, New York.

Mr. Castellino: May | see the Grand Jury

minutes?

Mr. Crew: Sure.

The Court: You'd probably like a few minutes

to look that over: wouldn't you?

Mr. Castellino: Yes.

The Court: We'll take a short recess for that

purpose.

(Whereupon, a short recess wax taken.)

(After recess, in the presence of the Court, the de-

fendant and counsel for the respective parties, the fol-

lowing proceedings were held.)

Q. (By Mr. Castellino) Mr. Kowitt, do you recall

when prior to April 14th of ’69 that you had been at the

Windsor Pharmacy? A. T had been there on January

31, 1969.

Q. And did you not have oceasion at that time to go

through the narcotic file?

27

Mr. Crew: You mean did he have an oppor-

tunity, or did he do it?

Mr. Castellino: Did he do it.

The Witness: | had inspected certain prescriptions.

certain narcotic prescriptions, I believe, in regard to one

particular patient.

Q. (By Mr. Castellino) Do you—you were only look-

ing for one particular prescription at that time; is that

correct? A. 1 wax looking for any nareotic preseriptions

relative to one particular individual.

Q. But you didn’t conduct any type of general audit

or investigation at that time? A. No, sir: ] did not.

Q. That wax in January of ‘697 A. Yes, sir.

Q. And these files were available to you at that time ;

were they not? A. Yes, sir; they were.

Q. Now. do vou recall telling Mr. Terraciano on the

14th of April of ‘69 that if he cooperated, of course.

you would make that fact known to your superiors?

A. I told him that the facts regarding the availability

and accuracy of records would be made known.

Q. The facts regarding availability? A, Availability

and accuracy. The results of the audit was hasically

what it boiled down to.

Q. And the extent of his cooperation in that audit: did

you not? A. His cooperation in that audit in regard to

making the availability and assisting me in the audit :

yes, sir.

Q. You told him that that fact would be duly reported

to your superiors: did you not? A. Yes, 1 did.

Q. But the records were there, and you claimed the

right to examine them under the provisions that you

have previously cited anyway; did you not? <A. Yes,

sir.

Q. Now, at page 42 of the transeript of the Grand

Jury minutes, a copy of which has been furnished me

by the District Attorney at line 18, do you recall this

28

question being asked: “Mr. Kowitt, | show you People’s

exhibits one through twelve and ask you to examine them

and tell me if you recognize them.” Your answer: (Wit-

ness examined one through twelve) Your reply: “These

are prescriptions which I removed from files main-

tained at Windsor Pharmacy at Horseheads, New York.”

Do you recall, in words or substance, that question and

that answer? A. Yes, sir.

Q. And do you recall, sir, then testifying or being

questioned with rspect to these, some twelve exhibits in

the Grand Jury? A. Yes, sir.

Q. Those were all exhibits which you had personally

removed from the Windsor Pharmacy: isn't that correct?

A. Yes, sir.

Q). Did you have occasion to discuss these exhibits with

Investigator Capezz: before your testimony in the Grand

Jury? A. Yes, sir.

Q. Did you have occasion to discuss the exhibits, either

all or any one of them with any person or persons whose

names might have appeared thereon prior to your testify-

ing before the Grand Jury? A. May T inquire. the names

that appear thereon? Are you referring to the names

on the prescriptions?

Q. Yes. A. No. I did not interview any of the people

whose names appeared on the prescriptions.

Q. Now, isn’t it true, Mr. Kowitt, that based on your

inventory here, you removed many items and many records:

did you not? A. Yes, I did.

(). Substantially more than twelve or thirteen that you

identified in the Grand Jury; isn’t that correct? A. T

removed all of the items which appear on the receipts on

those two pages.

Q. Now, you did not testify as to all these items that

you removed in Grand Jury: did you? A. Not to the

best of my recollection.

Q. Well, if the Grand Jury recites that you identified

some 13 exhibits which were removed from the Windsor

29

Pharmacy, this would indicate that there were many

other records removed that you did not have o°casion

to testify to regarding them in the Grand Jury; isn’t

that correct? A. Yes.

Q. Did you have occasion to confer with Investigator

Capozzi and to examine these exhibits in his presence

prior io Grand Jury? A. Yes, I did.

Q. And was a member of the District Attorney’s office

present during this conference. or if there was more than

one conference? A. | ¢an remember one conference

where a representative was present; yes, sir,

Q. So, isn’t it fair to say, Mr. Kowitt, that you, when

you went to the Windsor Pharmacy on April 14th of

69, you were there to conduct & general audit of all

narcotic and depressant records there; isn’t that correct?

A. I went there to audit specific, certain selected nar-

cotic drugs, depressant and stimulant drugs and excepted

narcotic preparations and inspect records and conduct an

investigation relative to those records,

Q. You were not forearmed with any specific items or

prescriptions or names that you were looking for? A,

Not to the best of my recollection, sir.

Q. You were merely going to check certain categories

or items of drugs; isn’t that right? A. Yes, sir,

(. The records of such drugs.

Mr. Castellino: | have no further questions.

Re-direct Evamination hy Mr. ¢ ‘Trew:

Q. Mr. Kowitt, at the time that you went to the

Pharmacy on April 14th, 1969, were you a duly repre-

sentative of the New York Nareotie Control Bureau? A.

Yes, sir; I was.

Q. And when you removed the various records that

you have testified to from the pharmacy, did you give

a receipt upon forms provided hy that department pur-

Ge. et et ted

30

suant to Title 10 of the Codes, Rules and. Regulations

of the State of New York? A. Yes, 1 did.

Q. And, Mr. Kowitt, after you arrived there on the

14th day of April. 1969, and advised the defendant of

the rights that you have testified to and particularly con-

cerning his telephoning of an attorney. approximately how

long would you say, how much time would you say

elapsed from the time you advised him of these rights

until this person arrived, who was purported to. you to

be an attorney? A. I would say approximately an hour

to two hours, perhaps.

Q. Something between an hour and two hours? A.

I'd say within that time period approximately. Yes.

Mr. Crew: That's all.

Re-cross Examination by Mr. Castellino:

Q. So that you had during that lapse of time an op-

portunity and, in fact. you did examine these records

and commence your investigation® A. 1 did begin to in-

spect the records. Yes, sir.

Q. Do you reeall Mr. Capozzi making any statement

to you on his departure from the Windsor Pharmacy

on that date with respect to your investigation? A. No,

“r: I don’t.

(2. You don’t reeall him saying in words or substance,

if you find anything. let me know? A. No, sir: T do

not.

Mr. Castellino: I have no further questions.

Mr. Crew: Thank you. Mr. Kowitt.

The Court: Exensed.

Mr. Crew: Offer People’s exhibits one and two

for identification into evidence, Your Honor.

Mr. Castellino: I have no objections.

The Court: Received.

. ——«

31

(Whereupon, People’s exhibits | and 2, heretofore

marked for identification, were received in eyi-

dence. )

The Court: In this motion to suppress, does the

defendant have any evidence?

Mr. Castellino: Yes. T wish to call Mr. Terra.

ciano.

The Court; Now, in order to clarify this, are we

just dealing with the motion to Suppress, and do you

wish to defer?

Mr. Castellino: On the question of the Miranda

warnings and Statements and confessions, because

I did not know until this morning that Mr. Mus-

tico—I think the record will eventually hear me

out—Mr. Mustico’s presence relative to the advies

on these, Your Honor,

SALVATORE TERRACIANO, called as a witness, hay.

ing been first duly sworn, was examined aud testified

as follows:

Direct Examination by Mr. ¢ ‘astellino:

Q. Your name is Salvatore Terracianot A. Yes, sir.

Q. Where do you live, Mr, Terraciano? A. 224 Oriole

Drive, Horseheads,

Q. Are you the Proprietor of the Windsor Pha

located on 204 Gardner Road, Horseheads? A. Yes,

sir.

Q. How long have you conducted the business there?

A. Since May of ‘68.

Q. May of ‘689 A. Yes, sir.

Q. And are you a duly licensed Pharmacist? 4 Yes,

sir; T am.

Q. In the State of New York: how long have you

heen so licensed? A. Sinee 1951.

32

(). Now, do you recall April of 1969, specifically on or

about the 10th day of that month when an individual

identified to you as Michael Capozzi of the New York

State Police came to your establishment? A. Yes, sir.

Q. And was he alone on that date? A. Yes, he was.

Q). And he identified himself to you? A. Well, he came,

actually he came behind the counter. Actually he came

hehind the counter before he identified himself. ' other

words, the drug counter is up front, and he walkea di-

rectly behind it. Then he presented his credentials with-

out saying, actually came behind the counter.

Q. Would you describe this counter as it relates to

the rest of the store? A. Yes. Well, the prescription

counter is to the right and the drug counter to the left

coming in the front of the store. And there is a very

narrow, well, there is a space from the end of the drug

counter that takes vou behind the drug counter to the

prescription department.

(). Well, that area is not open to the general public?

A. No, sir; it’s not.

Q. Ail right. What occurred on that date? A. Well,

the best of my knowledge that day this Mr. Capozzi,

as T later found out his name; | didn’t know him prior

to the time he came in and walked directly behind the

drug counter and produced his credentials and said he

wanted to see my records.

Q. All right. What, if anything, oceurred? A. And

he showed me his credentials real fast and T said, “Just

a minute” and picked up the telephone and called my

attorney, and the line was busy at that time. Well, he

savs—

Mr. O’Mara: Who was that? T’m sorry.

The Witness: T picked up the telephone and called my

attorney.

Mr. O’Mara: And you said somebody.

The Witness: The line was busy.

Mr. O'Mara: T see.

33

The Witness: | tried again, | think, and he started

to say that he has a right to come behind to inspect

the records. I said, “Just a minute. | want to make

sure you do. I want to cheek and see if you do actually

have the right,” and he got a little bit hot under the

collar so to speak, and I dialed again. I was trying

to get ahold of Frank Panzarella, who was my attorney

at that time.

Q. (By Mr. Castellino) Mr. Panzarella represented

you previously in other matters? A. Yes, he did. He

actually did the Jegal work in opening up the store.

Q). Which was not related to any criminal charge. A.

No, sir.

Q. So he had represented you on other oeeasions? A,

Yes.

Q. All right. Continue. A. So. | think J dialed again,

and fF couldn't get Frank. So | tried to vet John O’Mara

and couldn't get him either. The line was busy, some-

thing: | don’t remember whieh. Mr. Capozzi—l didn’t

know him previous to this-—he said. “Are you refusing

me access to records?” Tle tried to put words in my

mouth.

Mr. O'Mara: | object to that. Your Honor, what

he’s trying to do.

The Witness: That's exactly what | told him.

The Court: Exaetly?

Mr. O'Mara: You said that?

The Witness: That’s exactly what | said to him: “Are

you trying to put words in my mouth? I’m not refusing

you anything. Im just exercising my constitutional right

to cheek with my attorney. As far as T know. you

have no right. As long as T have been a pharmacist

| have never had the State Police or law enforcement

come in. As far as T know, they have no right to come

behind that drug counter.

a acc eR aes TL alee

Sa ae ae a ret eed nee eee wae

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34

Q. (By Mr. Castellino) All right. Continue. A. So

with this he says to me some words—this is not ver-

batim. As far as | recall he says to me, “T haven’t got

any time to waste around here.” and huffs around and

goes out the door.

Q. Did there come a time when he returned? A. He

returned, | believe this was on a Thursday and came

back the following day in the afternoon with, IT think,

four other policemen and with a warrant for my ar-

rest.

The Court: Would that be April I1th you're talking

about?

Q. (By Mr. Castellino) Would that be the 11th, the

next day? A. I believe so. 1 don’t remember the date.

It was the following day after that Thursday.

Q. And this warrant charge you with— A. —QObstruct-

ing Government Administration.

Q. And were you taken and arraigned on this charge

in a Village Court? A. He, Mr. Capozzi, came in, and

he said, he says, “I’m arresting vou.” T said, “What’s

the charge?” And he showed me a warrant for my ar-

rest and said, “We are taking you down to police head-

quarters.” I said, “Okay. Fine. Can I leave the lights

on?” Some words to the effect, “Can I put a sign on

the door and put my coat on?” With that, the four

policemen and myself and Mr. Capozzi went in the police

ear down to the police station in Horseheads.

Q. Was this as a result of the incident that occurred

on the previous day when Mr. Capozzi was there? A.

Yes, it was.

Q. You were arraigned on this charge. You did not

plead guilty to that charge; is that correct? A. That’s

correct.

Q. And there was subsequent proceedings in that Vil-

lage Court on that charge; isn’t that right? A. Yes, sir.

DP eet SN RN AI EER RN I ce ear Nr

35

Q. Now, did there come a_ time following your ar-

raignment that Mr. Kowitt from the State Narcotics

Control Bureau showed up at your establishment? A.

Yes, he was; I think the following, that very next morn-

ing. This was Friday; he was in Monday with Mr.

Capozzi.

Q. This was three days after you were arrested? A.

That’s correct.

Q. All right. Do you recall in words or substance any

conversations that were had on Monday, April 14th, at

your store in the presence of Mr. Capozzi and Mr.

Kowitt? A. And Mr. Capozzi eame in with Mr. Kowitt.

and I think he introduced Mr. Kowitt, who I think pre-

sented his credentials, and he said, “Let Mr. Kowitt in

behind the drug counter to this prescription department,”

and Mr. Capozzi said, “Let me know if you find any-

thing, Ted.”

Q. And with that did Mr. Capozzi leave? A. I think

within a matter of a few minutes he left.

Q. At that time. did Mr. Kowitt or Mr. Capozzi ex-

hibit any search warrant to you? A. No, sir: they did

not.

Q. Did you at any time on this date or any prior oc-

casion consent to any audit examination or investigation

of your records by Mr. Kowitt? A. No, sir: T did not.

Q. What—

Mr. O'Mara: Well, | object both to the ques-

tion and to the answer. That’s the question the

Court is going to have to decide.

Mr. Castellino: Well. T submit this witness has

a right to testify. What the Court finds follow-

ing the eonelusion—

The Court: T’ll allow the question and give you

a full chance to cross examine him.

The Witness: No, | didn’t give any consent, but I

felt the fact I had been arrested previously—

PERSO OI BN LET

ei ree

PRR Pe NN Ree RNR:

36

Mr. O’Mara: Object to what he felt.

The Court: Just leave out that word. Not what you

felt.

The Witness: The fact 1 had been arrested previously

by Mr. Capozzi and didn’t want to get into any more

trouble by refusing the New York State Narcotics In-

spector to any records, and T was afraid of my further

arrest.

(). (By Mr. Castellino) Were you, also, familiar at that

time with the rales and regulations and specifically the

requirement under the Public Health Law? A. Yes, sir.

Q. And did yot hear Mr. Kowitt this morning testify

with respect to the contents of those rules and regula-

tions with respect to aceessibility and investigation and

examination of vour records? A. Yes.

@. Did Mr. Kowitt at any time following the exhibition

of his eredentials ask you for your permission to go

behind and examine your records? A. No, sir; he didn’t.

©. What. if anything, do you remember him saying to

vou with regard to the purpose. A. He said a routine

investigation. This* is semething they doe quite fre-

quently in drug stores.

(). Was any attorney present at that time? A. No,

sir: not when he first came.

0). Did there come a time when an attorney came?

A. Yes.

Q. Who was that attoriey? A. Lou Mustico.

QO. About how long after Mr. Kowitt arrived did Mr.

Mustico come? A. T believe it was about an hour T would

say, roughly. | den’t remember exactly, but [ believe it

was about an hour after.

Q. What was Mr. Kowitt doing during that period of

time? A. He was checking what they eall an AB file,

stimulant and depressant re-cross. and he had his brief

ease with him, and he. was getting ready to start an

audit.

Te eet a Re ONS a eed GE

37

Q. Did Mr. Kowitt, upon his entry behind the pre-

scription counter say anything to you with respect to

telling his superiors anything? A. He says they would

ask him a question when he gets back if the pharma-

cist was cooperative, and this he has to. He says if

he was cooperative: he says if he wasn’t cooperative. In

other words, he puts hack a report as to whether or

not I was cooperative.

Q). Had Mr. Kowitt had occasion to be in your pharmacy

prior to the April 14th date? A. Yes, he was.

Q. Do you recall approximately when that was? A.

Yes. Tt was sometime in January. I’m not sure of the

exact date, but | had gotten a call from Mr. Kowitt Fri-

day from his office in Rochester. He asked me about a

possible forgery of a prescription from Doctor Game.

Apparently he had gotten—

Q. Just with respect to what happened. Did he come

to vour store? A, Ves. He examined the whole narcoties

file; right. And. also. the exempt nareotie book. He

stamped it in there.

(). How long did Attorney Mustieo remain at the prem-

ises on the 14th: if you recall?) A. To the best of my

knowledge | think it was about a half hour. 1 don’t know

the exact time. I’m guessing about a half hour.

(). Did he return at any time on this date or the next

day? A. 1 don’t believe so.

Q. Of course, there isn’t any question but what Mr.

Kowitt did remove records from vour establishment?

A. Yes,

Q. And he gave you a receipt for them? A. Yes.

. Do vou reeall, upon his arrival, his making any

statement to vou regarding certain rights with respect

to any statement that you might make? A. He wanted

me to sign an a‘fidavit, and T told him T’d have to check

with my attorney first,

Q. So vou did not sign any statement? A. No.

Bie. Weenie

38

Q. Did he tell you with respect to making any oral

statements or admissions what your rights were? A. I

can honestly say I don’t recall.

Q. Did Mr. Kowitt at the time of his appearance on

the 14th of April tell you under what authority, if any,

he was acting in making this investigation? A. All he

told me was it was a routine check, routine audit.

Q. He did not refer to any specifie rules or laws or

regulations? <A. No, sir: le did not.

Mr. Castellino: I have nothing further.

Cross Examination by Mr. Crew:

(). Mr. Terraciano. vou were in fact cooperative with

Mr. Kowitt? A. Yes, sir.

Q. You didn’t tell him he couldn’t examine your books:

did vou? A. T didn’t say that. 1 didn’t say it, no.

Q. You didn’t tell him he couldn't take any of these?

A. 1 felt if—

(). Not what vou felt. Did you tell him he couldn’t

take any of these things? A. No. | didn’t teli him, no.

Q. Well, an attorney did come that vou called; did he

not? A. Yes, sir.

(). And did vou hold him out to Mr. Kowitt as being

vour attorney? A. I think I did, ves.

Q. And he was there for about a half hour; is that

correct? A. To the best of my knowledge: IT believe so.

(). And hefore he came there, Mr. Kowitt was checking

through vour AB file, but he had not yet begun his audit;

is that correct? A. To the best of my knowledge he was

going through this AB file: right.

Q. Then this attorney arrived there. Do you recall

saying something in words or substance to Mr. Kowitt

after seeing his credentials that it was good or better

than he was there than the police from the narcotic

bureau or than the state police? A. T honestly don’t

recall.

iindaidiecininile ccaiette ah e

39

Mr. O'Mara: That’s all.

Mr. Castellino: I have nothing further.

The Court: Witness excused. Anything further on

the motion to suppress the exhibits here?

Mr. Castellino: T have no further evidence.

The Court: Do you wish to make a statement on it?

Mr. Castellino: Yes, | do, Your Honor. There are two

eases that | feel are very germane to the issue, which

T wish at this time to call to the Court's attention to.

The Court: | might as well get the cases,

Mr. Castellino: 24 New York. Also, 14 New York,

Your Honor. | don’t know if you have the Supreme

Court. That's 87 Supreme Court Reporter under the

original reports. It’s 387 U.S. The Court of Appeals

case cited in 24 New York Seeond at 647 is the Matter

of Finn's Liquor Shop versus the State Liquor luthority.

The case in 14 New York Second is People rersus Laverne,

14 New York Seeond, 304.

The Court: Yes, and now your Supreme Court case.

Mr. Castellino: See. S-E-E, versus the City of Seattle,

387 U. S. 544, City of Seattle. 875 of the Supreme

Court Reporter at 1737.

The Court: All right.

Mr. Castellino: It’s my contention, Your Honor, that

under the decision and this decision is April of 1969,

deeided by the New York Court of Appeals, that a war-

rant was served eyen though made pursuant to statutory

authority, as is apparently relied on here. is unconstitu-

tional and in derogation of the defendant’s censtitutional

rights as set forth in Article the fourth and fourteenth

amendment of the U. S. Constitution and is violative of

prohibition against unreasonable search and seizure.

Now, the Court of Appeals met this issue in the Finn

case in which the State Liquor Authority was acting

under Section 105, subdivision 15, of the Aleoholic Bever-

age Control Lav: which, in part, requires a licensee to

keep adequate books and records of transactions and fur-

40

ther recites that such books and records shall be avail-

able for inspection by an authorized representative of the

Liquor Authority.

Now, Judge Fuld, in writing the decision in this case

at 654 stated: “It is no longer subject to question that

State agencies charged with purely administrative re-

sponsibilities, just as those engaged in the enforcement

of the criminal law, must conduct their investigative and

enforcement functions in compliance with constitutional

requirements and, more particularly, within the confines

of the Fourth Amendment.”

He went on to state at page 655: “The Authority,

just as any other State agency, is obligated to conduct

its activities in conformity with the demands of the Con-

stitution.” Now, this involved an inspection of the prem-

ises and seizure of certain records not only on the prem-

ises but upon personal clothing. But the prohibition

and proscription as enunciated in this case, IT submit to

this Court, is clear.

The Court referred to Mapp versus Ohio decision as

well as the two most recent decisions, one which T have

cited in Court here; that’s See versus The City of Seattle

ard the Camara versus the Municipal Court. The Court

cited from the Plymouth case, and it states: “Under these

cireumstances, to hold that in the criminal proceeding

the illegally seized evidence is exeludable, while in the

forfeiture proceeding, requiring the determination that

the erimine| law has been violated, the same evidence

would be adiaissible.”

Now, there was reference made in this ease to the

Sackler case in which illegally seized evidence was per-

mitted in a proceeding. However, the Court distinguished

that on the basis of private individuals were involved

in the Sackler case as opposed to representatives of the

government. And it state. that the Sackler case held

that that decision would not be controlling where the

evidence was illegally obtained.

41

Now, Judge Fuld, in referring to and commenting

upon this statutory or attempted statutory grant of in-

vestigative power says: “What is even more significant

is that such a broad grant of statutory authority to

conduct warrantless searches would be unconstitutional,”

and I submit, of course, that this is what Articles 33 and

33(a) of the Publie Health Law attempt to do as they

attempt to place upon a state agency that authority

to indiscriminately and arbitrarily conduct a search upon

its own, while upon inspection without any intervention

by a Court authorized to issue a warrant.

Now, this is what the Court had in mind, and this

is what Judge Fuld clearly had in mind when he said:

“No State may require as a condition of doing business,

a blanket submission to warrantless searches at any time

and for any purpose. Applying this principle to the pres-

ent case, it follows that the investigator’s entry into the

back room of the store and, particularly, his search of

the coat may not be constitutionally justified.” and this

is what we have here. Observation could be made that

entry to the confines of the preseription area which have

been testified to here are closed to the public, and they

would attempt to justify this fishing expedition, and |

think the testimony of Mr. Kowitt is clear on that. He

didn’t go there armed with any specifie knowledge of

violations. He went there to conduet an audit with re-

spect to certain specified drugs. He was there solely

for the purpose of gathering evidence, and this has

heen roundly condemned by the courts in numerous eases

and, particularly, in Kerr versus California at 374 U. S.

23, which cites the proposition that search and seizure

for the purpose of obtaining mere evidence in the forms

of papers, books and records is unreasonable per se.

Now, that’s pretty strong language, but this. of course,

has heen made applicable to the statements by virtue

of the Fourteenth Amendment. But T think the language

of the U.S. Supreme Courtcin See rersus Seattle case

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Pisses: cine ae ih ee ak

A IS DR TAPE GEA IOL LD ALOE AAD BT AO ARP LE EN < we rene eee

»

is even much stronger. And what the See ease did was

to make applicable a prohibition under the Fourth and

Fourteenth Amendment to a commercial establishment.

There has been no argument on the application to pri-

vate dwelling houses, but in the See case the Court stated:

“The businessman, like the occupant of a residence, has

a constitutional right to go about his business free from

unreasonable official entries upon his private commer-

cial property. The businessman, too, has that right placed

in jeopardy if the decision to enter and inspect for vio-

lation of regulatory laws ean be made and enforeed by the

inspector in the field without official authority evidenced

by a warrant.”

Again, | submit that’s what the nareoties division con-

trol bureau is attempting to do here. The Court and the

U. S. Supreme Court stated: “We therefore conclude

that administrative entry, without consent upon the por-

tions of the commercial premises which are not open to

the public, may only be compelled through proseeution of

physical foree within the framework of a warrant pro-

cedure.”

Now, | submit to the Court that lanzuage is un-

equivoeally clear. The courts have reached a point where

they will no longer tolerate an administrative agency

walking into a business place at any time of the day or

night under any circumstances which they deem warrant

such a search and going through a_person’s records.

Now, in the Finn Case, they were applying this rule

of law to administrative hearing. They didn’t even get

to the situation of applying it in the criminal proceed-

ing, but adamant in saying they would not permit that

evidence to be introduced in an administrative proceed-

ing let alone a criminal proceeding.

T think the conclusion is clear. The Court, in the

See case, compared the administrative discretion to

walk in and investigate books and records as comparable

to subpoena powers; that just the arbitrary right to

— — wt event @ev

43

issue a subpoena was long ago determined. The provi-

sion to enter and inspect will not be a product of unre-

viewed discretion of the officer in the field. Again, this

is what we have here; unreviewed discretion of Mr.

Kowitt or the unreviewed diseretion of Investigator

Capozzi.

The fact remains that subsequent to Mr. Terraciano’s

arrest, ample opportunity was afforded them to obtain

a warrant here. This is not a situation where a circum-

stance is prevailed in which evidence might be destroyed.

They waited from April 10th when Mr. Capozzi did not

gain entrance until April 14th before bringing Mr. Kowitt

in. Now, there was ample opportunity to obtain a search

warrant here. They were not met with a situation whereby

evidence might be destroyed. They had the opportunity

within three days to obtain a search warrant.

Now, I submit that the courts have roundly condemned

this practice, and the Publie Health Law to the contrary,

notwithstanding that there is no authority now existing

in this state or this nation which permits this type of

search and seizure which oceurred here.

The question of consent obviously would rear its head

in this case, and | think in respect to this it’s interesting

to note that in the affidavit submitted by the People of

Theodore Kowitt under date of January 9th, nowhere

do they state that Mr. Terraciano in any manner con-

sented to this search,

Now, in our moving papers which we submitted to the

Court on this motion, we contended that this search was

not only without benefit of a warrant. but was without

benefit of the consent and acquiescence of Mr. Terraciano.

The People at no time attempted to refute this in their

affidavit. We get no more than a seintilla of consent.

perhaps, on reflection and second thoughts from Mr.

Kowitt. Well, he didn’t object. but yet we have the state-

ment he was going to report this to his superiors insofar

as his cooperation or lack of cooperation was concerned.

44

But the significant part of the affidavit of Mr. Kowitt,

he made the search in accordance with the powers and

duties conferred upon him by Article 33 and 33(a) of the

Public Health Law. And further reference to his au-

thority for making this search in accordance with the

provisions of such law, in accordance with 8072 and 8180

of the Codes, Rules and Regulations of New York State.

Now, I’ve cited the Laverne case for this very point

here, and while this involved a private dwelling, again

the question of searcli was involved here. But the Court

at page 307 in the Laverne ease said: “The degree of

resistance to this last described search is not certain in

the record, but it is clear that there is no proof of

consent and submission to the power of public authori-

ties, and circumstances of this kind is not a consent.”

And | submit that in view of what had befallen Mr.

Terraciano being arrested only three days previously,

because he asked Mr. Capozzi for an opportunity to call

his attorney and relying on what he interpreted the law

to be, that these people have an absolute right to walk

in there at any time of the day or night: that he was

foreed to consent: that | submit to the Court that con-

sent has not been established here. If the People wish

to establish consent. tiis onus is upon them. Consent

is not an exception to lawful search and seizure, but it

has heen engrafted upon the seareh and seizure only

upon a strong showing that the People have sustained

their burden of proof.

But we have here a situation where they were eon-

dueting an exploratory investigation. They were seek-

ing evidence here as opposed to fruits and instrumentali-

ties of the erime that such search is for no purpose. Of

course, they are condemned and prohibited. But T stand

on the declaration as are enuneiated in the matter of

Finn’s Liquor Store, and T submit this is the law in this

State, and this i, the law of the nation and that a man,

whether he is in the liquor business or whether in the

45

pharmacy business, is entitled to the equal protection of

the law.

And if you are going to apply under the State Liquor

Authority Act and the Aleoholie Beverage Contre] Law

then Finn must have its application to the Publie Health

Law. They make no distinction here. We are talking

about an administrative agency. There isn’t a scintilla

of probable cause here,

Now, the question of probable cause, as the Court

knows, is varied and many, and I’m not going to get into

that. Now, there is one ease in the Third Department

which involved an investigation by a member of the

narcotic contro! commission and involved a warrantless

search. Now, this was a matter of Makawa, M-a-k-a-w-a.

versus the Board of Regents, 30 Appellate Division, See-

ond, 459,

Now, they raise the question of warrantless search

on appeal, but the Appellate Division—this. incidentally

did not involve a eriminal proceeding, but it involved

an administrative hearing on a pharmacy license—but

the Court of Appeals in passing upon the questions of

search without a warrant—and. incidentally, Makawa

was prior to the Finn ease—but the Court, the Appellate

Division even at. this point said that no objection was

made as to the constitutionality or the legal issue of ad-

missihility and. therefore, the question was not preserved.

But even at that point. they took cognizance of it since

it had been raised on appeal but did not discount it.

Although they would not consider it, hecause it had

not been preserved on appeal, but Makawa was prior to

the Finn's Liquor. But before it, one could only specu-

late; but because it was not preserved, the Appellate Di-

vision did not pass upon it.

T submit and feel very strongly that situation here

falls directly within the Finn prohibition and falls within

the See case under the U. S. Court rulings, and that on

the basis of this decision of law. that the evidence which

ATO USS Wore, Brcrreess

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46

was obtained as a result of the search and seizure

should be suppressed.

The Court: You’re talking about exhibits one and two?

Mr. Castellino: I’m talking about those exhibits which

would be introduced before the jury.

The Court: This is all I’ve got before me right now.

Mr. Castellino: Well—

Mr. Crew: No. His motion, Your Honor—I beg to

differ with the Court respectfully—his motion, I con-

cur with Mr. Castellino, is directed as to any and all

evidence taken from the defendant, and we stipulated in

the prior hearing that we did not use or intend to use

anything taken from the home at which point Mr. Castel-

linc directed his motion to all those items taken from

the store of any kind during the course of this investiga-

tion which was or could have been used before the Grand

Jury and which may be used on the trial.

The Court: Now, are those what are covered in People’s

exhibit—

Mr. Crew: People’s exhibit one as set forth, all that

evidence taken from the store.

The Court: That’s what | want to know.

Mr. Castellino: We are seeking a return of all these

items ana seeking suppression of those items which are

part of the criminal proceeding and are contained in the

indictment.

Now, the defendant, or excuse me. Mr. Kowitt testi-

fied that he identified some 12 exhibits in Grand Jury, and

T submit to the Court that many of those exhibits are

the basis of counts contained in the indictment.

Now, we don’t have a specifie alignment, although the

District Attorney’s office furnished a bill of particulars

relative to this in which they stated that, and paragraph

six of their bill of particulars, that, “Upon information

and belief prescriptions were proffered and received by

the defendant at the time of the alleged transactions re-

ferred to in counts numbered ‘Ninth’ through ‘Seven-

A RRL A Rll Pe RIT PTE inion” ae cretion:

47

teenth’ of indictment number 69-59 and _ that said pre-

scriptions are alleged to be prescriptions of duly licensed

physicians.” But we are seeking the suppression of any

items of evidence which are germane to this prosecution

and which were introduced before the Grand Jury on

which the indietment and counts therein are premised.

The Court: That's what 1 wanted to clarify. Thank

you. | had not gone hack over those papers. | just

wanted to make sure,

Mr. Castellino: | want this record to make my posi-

tion clear on that. too.

The Court: Yes.

Mr. Crew: Well, if. it Please the Court. | would! like

the balance of the week to submit a written memorandum

in Opposition to Mr. Castellino’s statement. In point of

fact, | anticipate | could do that Within 48 hours. Par-

ticularly in the Finn case, as to the consent. I think

there is ample evidence of consent already. This is not

at all like the Finn case with that regard. We have

had an attorney present here. [t's clear the defendant

himself on the stand has testified that he called this

attorney, The attorney was present. His attorney was

purportedly representing him. He was there at least a

half hour.

There is no evidence Whatsoever, and | submit there

can't be, because it: didn't happen that the attorney re-

fused to allow it. He knew what this man was and what

he was there for. There is no evidence whatsoever, even

after the advent of the attorney on the premises that

there was a denial to the inspection and subsequent. tak-

mg.

It’s quite obvious that the defendant was cognizant of

his rights just in the fact that he called the attorney and

he was there.

But T would like to submit a memorandum.

Mr. Castellino: The only thing I want to Say, this

man had refused consent to Investigator Capozzi and

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48

it resulted in his arrest. Certainly we are dealing with

an entirely different situation where an element of duress

and constraint and was manifest as the result of Capozzi’s

appearance; how his appearance on the scene three days

after the arrest certainly influenced his decision as evi-

deneed by the testimony.

The Court: Then you went until Friday to get a memo-

randum.

Mr. Crew: In opposition to Mr. Castellino.

The Court: You want a chance to review the memo-

randum, [ assume.

Mr. Castellino: Yes, [| would, Your Honor.

The Court: Okay. That ends the ease right now.

Certificate

I, Georce F. Barrincer, County Court reporter, certify

that the foregoing is a true and correct transcript of

the proceedings held at the Chemung County Courthouse,

Elmira, New York. on February 17. 1970, in the matter

of People against Salvatore Terraciano.

Dated:

GEORGE F. BARRINGER