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UNITED STATES EX REL. ROSNER v. WARDEN

July 2, 1974

UNITED STATES ex rel. Nancy ROSNER, on behalf of Joseph Winograd and Dominic Montemarano, Petitioners,
v.
WARDEN, GREEN HAVEN PRISON, STORMVILLE, NEW YORK, and Commissioner of Correction for the State of New York, Respondents


Gurfein, District Judge.


The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge:

This is a petition for a writ of habeas corpus brought on behalf of Joseph Winograd and Dominic Montemarano. Dates are important to an understanding of the legal issues raised.

 Winograd seeks relief from a judgment of the Supreme Court, New York County, rendered January 3, 1972, convicting him, upon his plea of guilty to thirteen counts of Criminal Usury under former N.Y. Penal Law § 2401, seven counts of Criminal Usury under New York's revised Penal Law § 190.40, McKinney's Consol.Laws, c. 40 and various other counts charging violations of the Penal Law. He was sentenced to an indeterminate term of imprisonment not to exceed three years. Montemarano seeks relief from a similar judgment rendered on December 17, 1971, convicting him on his plea of guilty of Criminal Usury under New York's revised Penal Law § 190.40, and Conspiracy in the Third Degree under revised Penal Law § 150.05. He was also sentenced to an indeterminate term of imprisonment not to exceed three years.

 Before the pleas of guilty, a motion to suppress intercepted wiretapped conversations pursuant to state court order was made. It was denied on the authority of People v. Feinlowitz, 29 N.Y.2d 176, 324 N.Y.S.2d 62, 272 N.E.2d 561 (1971), cert. denied, 405 U.S. 963, 92 S. Ct. 1175, 31 L. Ed. 2d 239 (1972).

 On their appeal to the Appellate Division, both convictions were unanimously affirmed without opinion. People v. Winograd, App.Div., 43 A.D.2d 935, 352 N.Y.S.2d 1008 (1st Dept. 1974). An application to the Court of Appeals for permission to appeal was denied. The petitioner's point in the Appellate Division and in this Court is on the ground that eavesdropping conducted against the petitioners was in violation of Section 605 of the Federal Communications Act and that the warrants for the interception were void because they failed to specify the date upon which they were to take effect. *fn1" They contend that People v. Feinlowitz, supra, is not binding on the federal courts and was wrongly decided.

 The Wiretap Orders

 In 1967 the District Attorney of New York County was investigating a purported conspiracy among Joseph Winograd, his wife, Sylvia, Carmine Persico and Dominic Montemarano to engage in loan-sharking. From an informant named Lessner in the Winograds' employ, it was learned that the Winograds were operating a loan-sharking business from their fur establishment at 150 West 28th Street, Manhattan. The informant supplied the District Attorney with a list of twenty-six people who had borrowed money from the Winograds in amounts ranging from a few hundred dollars to nearly ten thousand dollars at usurious rates. The informant divulged that the Winograds used the telephone at their business to arrange for the usurious loans and the means for their collection. They also were said to be using the telephone to reach Persico when he was needed to collect a debt by force. A meeting between the informant and the putative defendants was observed, as one incident of which Montemarano grabbed the informant by the lapels of his overcoat and pushed him up against the building.

 The District Attorney and an assistant made an affidavit to Justice Gellinoff dated February 23, 1968, substantially reciting the above and applying for an order to intercept the conversations of those named above on all three telephones at Winograd Furs, Inc. Justice Gellinoff granted the application in an order dated February 26, 1968. The warrant authorized the interception of conversations pertaining to named crimes, at specified telephones, for a maximum of 30 days from the effective date during business hours, but the judge failed to insert "the effective date" when the interceptions were to begin, allegedly because the District Attorney did not know when the wiretap could actually be installed. The order was, however, clearly dated February 26, 1968. *fn2"

 Pursuant to the warrant the police intercepted a number of conversations involving the Winograds, the informant Lessner, Montemarano and Persico. In many of those conversations borrowers were threatened; *fn3" in others, usurious loans were negotiated or renegotiated. *fn4"

 On April 3, 1968 Justice Gellinoff signed a second order authorizing interception of the telephone conversations for an additional thirty days. *fn5"

 In 1969 Persico, Lessner (the informant) and the Winograds were indicted on various counts of usury, grand larceny by extortion, coercion and related charges. The indictment charged that the Winograds and Lessner would lend money at rates of interest ranging from about 140 per cent per annum to about 260 per cent per annum; and that Persico would enforce the usurious agreements by use of physical force. In a separate indictment Montemarano was charged with various counts of usury, conspiracy, grand larceny by extortion and related crimes.

 On October 6, 1971, Winograd moved to suppress the evidence from the wiretaps on the ground that the orders failed to specify the dates upon which they were to take effect, and on the ground that the eavesdropping violated Section 605 of the Federal Communications Act. They also tendered another ground not raised here, which is irrelevant. The Court denied the motion. As noted above, each petitioner then pleaded guilty.

 I

 The petitioners do not contend that there was any lack of probable cause for Justice Gellinoff's order. Nor do the People contend that the petitioners may not attack the ...


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