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April 30, 1984

Fillipo RAGUSA, et al.

The opinion of the court was delivered by: COSTANTINO


COSTANTINO, District Judge.

 In the above-entitled action, all defendants have challenged pursuant to Title 18 § 2518(10), the legality of the interceptions of wire communcations authorized by New York State and Federal eavesdropping orders, which the government seeks to use as evidence against them. The defendants' primary contention is that the second wiretap order ("Salemi # 2"), was an illegally obtained extension of the first state order, ("Salemi # 1"). Thus defendants seek to exclude evidence of all conversations authorized by the second eavesdropping order as well as evidence obtained through subsequent "tainted" orders. For the reasons set forth below, defendants' motion to suppress wiretap evidence on these grounds is hereby denied.


 The facts relevant to this motion are as follows. On March 30, 1983, the Queens County District Attorney's Office received an eavesdropping warrant from Justice Brennan of the New York State Supreme Court, authorizing the interception of conversations over the telephone of Calogero Salemi, a suspected narcotics dealer. Pursuant to C.P.L. § 700.10(2), the first warrant expired on April 29, 1983. On May 13, 1983, Justice Brennan signed an order authorizing a second thirty-day period of interception over Salemi's telephone (Salemi # 2).During the fourteen-day period between the expiration of Salemi # 1 and the instigation of Salemi # 2, there was no order in effect authorizing interception of oral communications over Salemi's telephone.

 The testimony of Detective DiRosa at the hearing on this motion, revealed that upon expiration of the Salemi # 1 wiretap, he permanently deactivated the wiretapping device by turning off the tape recorder, removing the reel of tape and hanging up the "slave phone." *fn1" These actions rendered the wiretapping device inactive until such time as the second eavesdropping warrant authorized a new wiretap on the Salemi phone. Detective Occhiogrosso testified that on May 14, 1983, he reactivated the wiretapping device.

 While all of the defendants have moved to suppress the wiretap evidence, only defendant Francesca Bartollotta has standing to challenge the legality of the second wiretap order. Only an "aggrieved person" may challenge the validity of a wiretap order. N.Y.C.P.L. § 710.20; 18 U.S.C. §§ 2510(11), 2518(10)(a). In United States v. Fury, 554 F.2d 522 (2d Cir.1977), cert. denied, 436 U.S. 931, 98 S. Ct. 2831, 56 L. Ed. 2d 776 (1978), the Second Circuit defined an "aggrieved person" as a person against whom the wiretap being challenged was directed or one whose conversation was intercepted during the wiretap. 554 F.2d at 525. In the instant case, none of the defendants were named in the second wiretap order and only Francesca Bartollotta, participated in conversations intercepted during the period of this order. Moreover, the fact that conversations or other evidence gleaned from the second wiretap were used in later wiretap orders in which the other defendants were named or during which their conversations were intercepted, does not give them standing to challenge the second wiretap. 554 F.2d at 526.

 Choice of Law

 In the area of wiretap evidence the general rule is that "federal law controls the admissibility of tape recordings in federal criminal cases and complaints that the evidence was obtained in violation of state law are of no effect." United States v. Butera, 677 F.2d 1376, 1380 (11th Cir.1982), cert. denied, 459 U.S. 1108, 103 S. Ct. 735, 74 L. Ed. 2d 958 (1983).

 However, in a series of cases, the Second Circuit has asserted the position that under limited cirumstances, state evidentiary law shall govern in determining the admissibility of wiretap evidence. See United States v. Vazquez, 605 F.2d 1269, 1276-77 (2d Cir.), cert. denied, 444 U.S. 981, 100 S. Ct. 484, 62 L. Ed. 2d 408 (1979); United States v. Sotomayor, 592 F.2d 1219, 1223 (2d Cir.), cert. denied sub nom, Crespo v. United States, 442 U.S. 919, 99 S. Ct. 2842, 61 L. Ed. 2d 286 (1979); United States v. Manfredi, 488 F.2d 588, 592 (2d Cir.1973), cert. denied, 417 U.S. 936, 94 S. Ct. 2651, 41 L. Ed. 2d 240 (1974).

 In addressing those limited circumstances, the Sotomayor court held that state wiretap tape recordings which were not sealed in compliance with state law were nonetheless admissible in a federal criminal proceeding as the state sealing requirement was a "post-interception procedure relating to . . . preservation of evidence, as contrasted to the methods used to obtain it." Sotomayor, at 1226.

 The Sotomayor court stated:

 We believe that at most Manfredi requires us, in determining whether to admit a wiretap obtained by a state officer acting under a state statute, to apply only those more stringent state statutory requirements or standards that are designed to protect an individual's right of privacy, as ...

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