[976 N.Y.S.2d 796]
Stuart Levy, Ann Lee, Assistant District Attorneys, Office of the Bronx County District Attorney.
Edward McDonald, Matthew Mazur, for the defendants.
STEVEN L. BARRETT, J.
This Court previously inspected the Grand Jury minutes and found that there was legally sufficient evidence establishing all of the charges against all of the above-named defendants. The evidence presented to the Grand Jury established sufficiently that defendants, all of whom were New York City police officers and/or PBA (Patrolmen's Benevolent Association) delegates or trustees, engaged in a scheme involving the fixing  of summonses given for illegal parking and for moving violations. As will be discussed, the investigation into ticket-fixing was an outgrowth of an earlier investigation into the illegal activities of Police Officer Jose Ramos (who is separately indicted) which included, amongst other activities, the sale of large quantities of marijuana and counterfeit DVDs from two barbershops in the Bronx owned by Ramos, as well as a robbery, a burglary and insurance fraud. The investigation into Ramos' illegal activities included the use of court-authorized eavesdropping on Ramos' cell phone. During the course of the eavesdropping on Ramos, a number of conversations were intercepted in which Ramos was overheard communicating with fellow police officers in order to fix summonses for moving violations that had been issued to people known to Ramos. Those interceptions formed the basis for this Court's order, issued on December 23, 2009, authorizing eavesdropping on Police Officer Virgilio Bencosme's cell phone, this Court having found that there was probable cause to believe that Bencosme's phone had been used and would continue to be used in furtherance of the crime of Grand Larceny in the Fourth Degree and the Conspiracy and the Attempt to commit this crime. Following the December 23, 2009 order authorizing eavesdropping on Bencosme's phone, this Court authorized wiretaps to investigate ticket-fixing on 16 additional mobile telephones operated by 13 other [976 N.Y.S.2d 797] Bronx police officers who were either delegates or officers of the Bronx PBA or SBA (Sergeant's Benevolent Association). The eavesdropping, which ended on December 14, 2010, resulted in the interception of over 10,000 telephone conversations and text messages.
Defendants now move to suppress all or some of the eavesdropping evidence claiming that: 1) the Bencosme eavesdropping application failed to set forth a sufficient statement demonstrating that eavesdropping was necessary to investigate ticket-fixing;  2) eavesdropping to obtain evidence of Grand Larceny in the Fourth Degree is not authorized by the Federal wiretapping statute, and therefore, under the Supremacy Clause of the Federal Constitution and Federal preemption doctrine, this Court could not authorize eavesdropping to investigate the suspected larceny of summonses; 3) the December 23, 2009 eavesdropping application failed to establish probable cause to believe that evidence of Grand Larceny in the Fourth Degree would be obtained in the following 30 day period through eavesdropping on Bencosme's cell phone; and 4) the People failed to comply with the procedures for retroactively amending the warrant. In the alternative, if the Court does not suppress the eavesdropping evidence, defendants move for a Franks /Alfinito hearing based on their contention that the affidavits in support of the eavesdropping warrants included false and misleading statements and omissions with respect to the necessity for eavesdropping. For all the reasons given below, defendant's motion is denied in its entirety.
I. THE NECESSITY REQUIREMENT
Prior to obtaining the Court's authorization to eavesdrop on Bencosme's cell phone, the People were required, inter alia, to establish that eavesdropping was necessary to investigate an offense specifically designated in Article 700, in this instance, Grand Larceny in the Fourth Degree. See CPL 700.20(2)(d) and 700.15(4). To satisfy this requirement the People submitted, as part of its December 23, 2009 application to eavesdrop on Bencosme's cell phone, the affidavit of Sergeant Ramon Valdez, which contained several paragraphs that listed both the conventional investigative techniques that were tried and failed to achieve the objectives of the investigation, and the conventional investigative techniques that were not attempted because they allegedly would be unlikely to succeed. Although the Valdez affidavit contains some irrelevant and extraneous information with respect to why eavesdropping was necessary, it nonetheless established sufficiently that normal investigative procedures were either exhausted prior to the application to eavesdrop or (as to those not attempted) unlikely to be successful, and that eavesdropping was therefore necessary to achieve the goals of the investigation. In reaching this conclusion the Court has carefully reexamined the Valdez affidavit. This reexamination, however, has not been done in a vacuum. Rather, it has been [976 N.Y.S.2d 798] done in light of the objectives of the investigation into ticket-fixing, the nature and character of the crime being investigated, the technology employed in the commission of the crime, and the character of the targets of the investigation. Moreover, it has been done with an eye toward the context in which the interceptions began.
Thus, before examining the issues which constitute the controlling points regarding the necessity requirement for the eavesdropping conducted once the extent of ticket-fixing by police officers began to emerge from the intercepted conversations, the Court will address the circumstances surrounding the initial decision to wiretap Officer Bencosme's phone on December 23, 2009 (Target Mobile Telephone, henceforth " TMT", 12). There is a distinction between the initial actions of the investigators and the actions that followed the discovery of extensive police and delegate involvement in ticket-fixing, because the Bencosme order followed the inadvertent disclosure of one instance of ticket-fixing in the course of an ongoing and independent investigation employing eavesdropping that was in no way concerned with police ticket-fixing. The fact that the early determination was made under a different mindset than the eavesdropping applications that followed later once the dimension of ticket-fixing emerged; the fact that eavesdropping of police officers was initiated after the first evidence of ticket-fixing was disclosed pursuant to a wiretap directed at different individuals, with a different objective, and that is not challenged by the defendant-litigants here (and not challenged on necessity grounds by the defendants affected by those orders); and the fact that the District Attorney's Office did not launch an investigation of ticket-fixing from a blank slate, but instead had evidence of such conduct thrust upon them during an unrelated interception; these facts together inform the question of necessity as it bears on the entire spectrum of those eavesdropping orders later issued by this Court expressly directed at widespread police ticket-fixing.
Thus, the prosecutors went up on a wire to investigate Jose Ramos, at the time a police officer with numerous extracurricular interests, along with Lee King, a reputed drug dealer, commencing on or about January 9, 2009, and, under the direction of IAB (because of Ramos' NYPD association) Detective Randy Katakofsky. The investigation began with a request for installation of pen registers and trap and trace devices as to King's mobile phone, and initially related to a sale of large quantities of marijuana from a barber shop owned by Ramos. By February, 2009, Katakofsky had accumulated enough evidence to seek appropriately an eavesdropping warrant on King's phone, and thereupon, the wiretap led to evidence of numerous other crimes in which Ramos was involved, and consequent wiretap orders as to additional lines throughout 2009. Ramos was indicted for many of those crimes, some quite serious, along with other members of the Barber Shop Organization.
In the course of intercepting Ramos phone conversations in October and [976 N.Y.S.2d 799] November 2009, the investigators heard a series of conversations between Ramos and Police Officer Virgilio Bencosme pertaining to quashing of two summonses written by New York City police officers. In these conversations, Bencosme is heard to tell Ramos that the summonses would be " taken care of" . These various discussions led to the issuance of a wiretap order on TMT 12, Bencosme's phone, on December 23, 2009. Though it was known, or at least inferred, that Bencosme could not accomplish his objective alone, the extent of involvement of other officers acting at Bencosme's request or direction was then unknown. Therefore, as the investigators pursued Bencosme through a wiretap, there was no basis for believing that this aspect of the Ramos investigation would ultimately displace that investigation's objectives with a new and heretofore unrelated investigation. At most, the investigators could imagine that there was some other officer/delegate involvement but that Ramos alone was at the center of this conduct, and that Bencosme's subsequent conversations involving criminal activity would be with Ramos or someone related to Ramos' criminal activities.
This perspective alone justifies the investigators seeking, and the Court granting, an order to intercept Bencosme's conversations over TMT 12 without raising any new necessity issues, or requiring any additional necessity recitations. At this point, the focus on Bencosme was simply an unexpected but fully connected aspect of the Ramos investigation, and the People, in prior orders, clearly established that normal law enforcement methodology would be futile. Until later, when the interactions between the various PBA delegates was revealed through ongoing interceptions, the investigators would likely view this as a limited corruption in which a rogue cop— Ramos— was the instigator and a small number of other officers were his enablers. The importance of this early history of the investigation and the natural and unexceptional extension of eavesdropping in this investigation to Bencosme's line is that it establishes that the necessity of wiretap measures as to TMT 12 had already been established at the time the People sought authorization to eavesdrop on this line.
This conclusion does not relieve the People from having to justify the continuing use and expansion of eavesdropping to include the additional phones up to TMT 28. There was a point, undoubtedly, when the investigators realized that they were not dealing with an isolated few instances of a PBA delegate working in concert with Ramos, but rather that Ramos was tapping into an inclusive network of delegates, and a practice that was apparently long-standing and ingrained in the minds of many officers as an implicit privilege of service if not an outright perk. Indeed, in the course of the year-long investigation of conversations relating to ticket-fixing, the number of officers of various rank and assignment who were implicated in the practice by their own words vastly exceeded the number of officers ultimately indicted by the Bronx District Attorney. Thus, there came a time when the investigation here changed dramatically, with ticket-fixing taking over from the Ramos investigation. The Court has endeavored to review [976 N.Y.S.2d 800] the necessity requirement as it uniquely pertains to this broader investigation, but remains mindful that eavesdropping was already legally (and necessarily) in effect when the true character and extent of the criminal acts became known.
With respect to the objectives of the ticket-fixing investigation, the Valdez affidavit lists as its objectives the identification of all members and the procurement of evidence necessary to prosecute all members of the conspiracy to commit Grand Larceny in the Fourth Degree ( See ¶ 10 of Valdez affidavit). This broadly stated goal was an appropriate one in light of the fact that ticket-fixing by members of the NYPD involved a breach of the public trust. Once the true nature of ticket-fixing was understood, it was appropriate for the investigation to pursue the uncovering and prosecution of a widespread pattern of ticket-fixing, and not just the indictment of Bencosme and Ramos. Moreover, the goal being a wide-ranging investigation and prosecution, secrecy was therefore of paramount importance.
This goal could only be achieved by the use of eavesdropping. This is so because the crime being investigated, which involved the removal of summonses from the police precincts where they were supposed to be filed, along with other methods of ticket-fixing, could only be understood by listening to the conversations that preceded the actions of the targets. Unlike certain crimes, such as murder, robbery, gun trafficking or narcotics trafficking, for which the actions of the perpetrators constitute evidence of the crime, ticket-fixing is a crime as to which the conversation itself is a crime and for which the actions of the ticket-fixers, without the communications that preceded them, are often ambiguous and susceptible to innocent explanation. For example, if a police officer removes a ticket from the box where such ticket was supposed to be filed, or a police officer fails to attend or suffers a loss of memory at a hearing on a moving violation, these actions, without more, would not establish that a crime had been committed. Only the cell phone ...