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PEOPLE STATE NEW YORK v. FRED NASSAR AND THOMAS H. MORREALE (04/11/69)
COUNTY COURT OF NEW YORK, ONEIDA COUNTY
1969.NY.41102 <http://www.versuslaw.com>; 301 N.Y.S.2d 671; 59 Misc. 2d 1034
April 11, 1969
THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.FRED NASSAR AND THOMAS H. MORREALE, DEFENDANTS
Arthur A. Darrigrand, District Attorney, for plaintiff.
Salvador J. Capecelatro, Jr., and Paul R. Shanahan for Fred Nassar, defendant.
John F. Tierney for Thomas H. Morreale, defendant.
John J. Walsh, J.
The indictment herein was found on the 11th day of February, 1969 charging the defendants with a violation of section 200.10 of the Penal Law. It is alleged in said indictment that the defendants, while acting together and in concert and each being the accomplice of the other, did solicit and agree to accept from persons having an interest in the firm of Carucci Bros. Sanitation Service, a benefit, to wit, money, upon an agreement or understanding that in connection with a garbage collection contract, the action, decision or exercise of discretion of the defendant Nassar, as a public servant, to wit, Corporation Counsel of the City of Utica and a member of the Board of Contract and Supply of said City of Utica, would thereby be influenced.
Section 200.10 of the Penal Law provides: "A public servant is guilty of bribe receiving when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced." The defendants by identical motions, seek an inspection of the Grand Jury minutes.
The supporting affidavits allege, upon information and belief, that certain recorded telephone conversations allegedly had between the defendants and one Angelo Carucci were introduced either in recorded form or in transcript form as evidence presented to the Grand Jury, upon which evidence, in part, said indictment was found. They further allege that said telephone conversations were recorded without first obtaining an eavesdropping warrant, pursuant to the statutory requirements set forth in sections 814 to 825 inclusive of the Code of Criminal Procedure of the State of New York and without the knowledge and/or consent of either of the defendants and that by reason thereof, said recorded telephone conversations or transcripts thereof, were illegal and incompetent evidence and violated defendants' constitutional rights.
As a second ground for inspection, the defendants allege upon information and belief, that there was uncontroverted evidence before the said Grand Jury to the effect, assuming without conceding that any crime had been contemplated, that there was a complete and voluntary renunciation and abandonment of any crime or any attempt to commit a crime within the purview of section 40.10 of the Penal Law, and by reason of this alleged evidence, sufficient grounds for a dismissal of the indictment upon the Grand Jury minutes is presented.
The District Attorney on the argument of this motion conceded that the conversation was recorded without first obtaining a court order but argues that such order was not necessary because it was recorded with the consent of one of the parties to the conversation.
He further argues that renunciation is no defense where it occurs after the alleged crime is complete and that in any event, renunciation under the law is an affirmative defense to be raised upon the trial and that a Grand Jury is not bound to accept evidence of renunciation even if uncontroverted.
Since several matters of first impression appear to be involved, the court will consider them separately.
The Supreme Court of the United States has decided clearly that the Fourth Amendment of the Federal Constitution protects a person's private conversations as well as his private premises. (Katz v. United States, 389 U.S. 347 .) Since Mapp v. Ohio (367 U.S. 643, 655) ruled that "all evidence obtained by searches and seizures in violation of the Constitution, is by the same authority, inadmissible in a state court", the defendants here are entitled to challenge the recording of such conversations. The first question to be decided is whether a motion to inspect the minutes of the Grand Jury is the proper vehicle to raise the issue.
The courts have taken the position generally that an inspection of the Grand Jury minutes on the ground that evidence obtained as a result of a wiretapping or an illegal search and seizure was presented to the Grand Jury should be denied. (People v. Russo, 25 Misc. 2d 206; People v. Naples, 26 Misc. 2d 1050; People v. Rodriguez, 28 Misc. 2d 736; People v. Lesandro, 31 Misc. 2d 502; People v. Wagman, 31 Misc. 2d 505; People v. Mitchell, 51 Misc. 2d 82; People v. Horton, 53 Misc. 2d 277.) The reasons for such a denial were given by Justice Marks in People v. Atkins (221 N. Y. S. 2d 780, 782): "It cannot always be determined from an inspection of the grand jury minutes whether or not the evidence presented was lawfully obtained and therefore, a motion to inspect grand jury minutes does not properly serve to raise this issue."
In 1964, the Appellate Division of the First Department in People v. Gentile (20 A.D.2d 412, 413) finalized the appropriate procedure as follows: "A motion to inspect the Grand Jury minutes or, alternatively, to dismiss the indictment, as occurred here, is not the appropriate vehicle to test the constitutionality of a search and seizure, or to determine if the Fourth Amendment to the Constitution of the United States has been violated (see Code Crim. Pro., §§ 813-c, 813-d, 813-e, 249; People v. Atkins, 221 N. Y. S. 2d 780; cf. Code Crim. Pro., §§ 313, 668-672; People v. Gonzales, 31 Misc. 2d 486). A hearing should be held on the issues and the parties afforded the opportunity to support their respective contentions. The legality of the search and seizure as to law and fact should then be determined by the court. (Steele v. United States, 267 U.S. 505)."
The motion to inspect the Grand Jury minutes on this ground is denied without prejudice and with leave to the defendants to make appropriate motions for the relief sought, including the ...