claimed that trial counsel was ineffective in failing to raise such claims. Insofar as these claims would have been without merit, however, it is clear that appellate counsel did not err in failing to argue them nor is there any "reasonable probability" that a different outcome would have resulted.
With respect to his jurisdictional claim, petitioner contends that the temporary assignment to the Orange County Court of the Family Court Judge who presided at his trial was improper under Article 6 § 26(i) of the New York State Constitution, as construed by the New York Court of Appeals in Morgenthau v. Cooke, 56 N.Y.2d 24, 451 N.Y.S.2d 17, 436 N.E.2d 467 (1982). Morgenthau v. Cooke involved a plan instituted by then-Chief Judge Cooke of the New York Court of Appeals in 1981-82 for the temporary assignment of judges of the Civil and Criminal Courts of the City of New York to the New York Supreme Court. The New York Court of Appeals declared the plan void because it had not been adopted pursuant to the procedure set forth in the New York Constitution, Article 6 §§ 26, 28 (McKinney 1987).
Under Art. 6 § 26(i), the Chief Administrator of the courts did not have authority to make such temporary assignments "when no standards or administrative policies for such transfers have been established in the manner prescribed in [Art. 6 § 28]." Morgenthau v. Cooke, 451 N.Y.S.2d at 18. Petitioner contends that, similarly, no such "standards or administrative policies" governing the temporary assignment of Family Court judges to County Courts had been adopted by the time of his trial, and that the judge who presided therefore had no authority to do so.
We have no reason to believe that no such "standards or administrative policies" were in effect at the time of the appointment nor that it was not made in accordance with all prescribed procedures,
but assuming arguendo petitioner is correct, his argument is still without merit. In the wake of Morgenthau v. Cooke, numerous petitioners for writs of habeas corpus and civil rights litigants brought cases arguing that their convictions by improperly appointed judges violated their constitutional rights. In Barry v. Cooke, No. 82 Civ. 5146 (TPG), slip op. (S.D.N.Y. June 29, 1983), and in 26 opinions over the next two weeks, Judge Griesa of this court rejected such arguments, making clear that neither the federal Constitution nor New York state law was violated by a trial before such a de facto judge "whose assignment in a particular court may have some procedural defect":
The argument [that due process rights are violated by being tried before a judge lacking proper authority] has no merit whatever. The New York Court of Appeals, in its decision invalidating the first temporary assignment plan, anticipated the question of the authority of judges acting under that plan. The Court specifically declared that these judges had been "serving as de facto Supreme Court justices." 451 N.Y.S.2d at 33. Clearly there was no violation of the Federal Constitution in having criminal proceedings held before these judges. They were not interlopers. . . . The problems later found with regard to the particular selection process were not of such a nature as to indicate any problems about the competence of the individuals or their ability to function in a judicial capacity in the criminal cases assigned to them. It has been held in several factual contexts that a duly commissioned judge, whose assignment in a particular court may have some procedural defect, may be considered a de facto judge capable of conducting valid proceedings as such. McDowell v. United States, 159 U.S. 596, 602, 40 L. Ed. 271, 16 S. Ct. 111 (1895); Leary v. United States, 268 F.2d 623 (9th Cir. 1959); United States v. Marachowsky, 213 F.2d 235 (7th Cir. 1954).
Barry v. Cooke, supra. See also People v. Butler, 92 A.D.2d 1071, 461 N.Y.S.2d 913, 914 (3d Dep't 1983) ("even if it is assumed that the Chief Judge lacked authority to transfer [the judge from one county to another, he] nevertheless had jurisdiction to sentence defendant"). Petitioner has given us no reason to question the qualifications, rulings or temperament of the judge who presided at his trial or to doubt that he in fact received a fair trial. As there would have been no merit to petitioner's claim under either state or federal law, his appellate counsel's failure to argue it hardly constituted ineffective assistance.
Petitioner's claims that appellate counsel should have argued that the informant's evidence was illegal because obtained without a warrant and that trial counsel was deficient in failing to move to suppress it must also be denied. Neither the informant's entry into petitioner's home nor the admission of tape recordings of conversations that were transmitted to agents outside violated the Fourth Amendment. The Supreme Court dealt with essentially the same situation in United States v. White, 401 U.S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122 (1969), ruling that the Fourth Amendment did not bar admission at trial of a defendant's incriminating statements that were overheard by warrantless electronic eavesdropping and recorded by government agents by means of a transmitter worn by an informer during his meetings with the defendant at the defendant's home and elsewhere. The Court reaffirmed that the Fourth Amendment
affords no protection to "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Hoffa v. United States, [385 U.S. 293, 17 L. Ed. 2d 374, 87 S. Ct. 408 ,] 302. No warrant to "search and seize" is required in such circumstances, nor is it when the Government sends to defendant's home a secret agent who conceals his identity and makes a purchase of narcotics from the accused, Lewis v. United States, 385 U.S. 206, 17 L. Ed. 2d 312, 87 S. Ct. 424 (1966), or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant's words and the evidence so gathered is later offered in evidence. Lopez v. United States, 373 U.S. 427, 10 L. Ed. 2d 462, 83 S. Ct. 1381 (1963). . . .
United States v. White, 401 U.S. at 749. Because it is clear that petitioner "invited the [informant] to his home," Lewis v. United States, 385 U.S. 206, 210, 17 L. Ed. 2d 312, 87 S. Ct. 424 (1966), neither the informant's entry into petitioner's home nor the consequent transmission and recording of their conversations violated petitioner's rights. See also United States v. Myers, 692 F.2d 823, 859 (2d Cir. 1982), cert. denied sub nom. Lederer v. United States, 461 U.S. 961, 77 L. Ed. 2d 1322, 103 S. Ct. 2437 (1983) (citing United States v. White and Lopez v. United States, 373 U.S. 427, 10 L. Ed. 2d 462, 83 S. Ct. 1381 (1963), that Abscam Congressman's "conversations with undercover agents in whom he chose to confide were not privileged, and mechanical recordings of the sights and sounds to which the agents could have testified were proper evidence"); United States v. Gambino, 734 F. Supp. 1084, 1092 (S.D.N.Y. 1990) (citing White and Lopez to effect that "courts are in agreement that confidential informants and undercover agents, whose identity is unknown by person exercising authority, may be granted consent to enter a premises"); United States v. Wilson, 565 F. Supp. 1416, 1437 (S.D.N.Y. 1983) (citing White and Lopez to effect that where evidence "obtained through electronic surveillance" is "obtained with the consent of one of the participants to the conversation . . . there is no basis for its suppression"); United States v. Williams, 529 F. Supp. 1085, 1094 (E.D.N.Y. 1981), aff'd, 705 F.2d 603 (2d Cir. 1983) (citing white to effect that "consensual recordings have, as a matter of precedent, escaped the exclusionary rule"). Therefore, the admission at petitioner's trial of the tape recordings of his conversations with the informant and the informant's testimony concerning petitioner's drug sales was proper. Hence, neither trial nor appellate counsel violated the Sixth Amendment in failing to attack it. Ground (4) of the petition must, therefore, be rejected in its entirety.
For the above reasons, I respectfully recommend that your Honor dismiss this petition.
The parties are hereby directed that if you have any objections to this Report and Recommendation you must, within ten (10) days from today, make them in writing, file them with the clerk of the court and send copies to the Honorable John E. Sprizzo, to the opposing party and to the undersigned. Failure to file objections within ten (10) days will preclude later appellate review of any order that will be entered by Judge Sprizzo. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983) (per curiam). See generally Fed. R. Civ. P. 6(a), 6(e).
Dated: New York, New York
May 19, 1992
SHARON E. GRUBIN
United States Magistrate Judge