People v Rothman

[*1] People v Rothman 2005 NY Slip Op 51092(U) Decided on July 13, 2005 Supreme Court, Nassau County Ort, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 13, 2005
Supreme Court, Nassau County

PEOPLE OF THE STATE OF NEW YORK

against

Scott Rothman and ANTHONY NAPOLITANO, JR., Defendants.



584N/05



DENIS DILLON

District Attorney

Nassau County

Mineola, New York 11501

By Joseph P. Dompkowski

Barry E. Schulman, Esq.

Attorney for Defendant - Rothman

16 Court Street, Suite 2901, Brooklyn, NY 11241

William E. Weber, Esq.

Attorney for Defendant - Napolitano

2509 Avenue U, Brooklyn, NY 11229

Victor M. Ort, J.

Defendant Scott Rothman moves to suppress his intercepted electronic conversations and any evidence derived therefrom on the grounds that i) the eavesdropping warrants were issued without probable cause, ii) alternative means of investigation were not shown to be ineffective, and iii) the eavesdropping was not properly minimized. Defendant Rothman also seeks discovery of the original recordings of the intercepted communications as well as the recording devices which were used to execute the eavesdropping warrant. Finally, defendant Rothman seeks an order requiring the People to identify which documents and recordings they intend to introduce into evidence on their case-in-chief at trial. Defendant [*2]Anthony Napolitano is similarly moving to suppress the wiretap evidence.[FN1] Defendant Napolitano also seeks certain discovery with respect to the wiretap and inspection of the controlled substances which form the basis of the charges against him. In opposing the suppression motions, the People argue that i) the warrants were supported by probable cause, ii) normal investigative techniques had been tried or were not likely to succeed, and iii) the intercepted communications were properly minimized. Thus, the People argue that no hearing with regard to the suppression motions is necessary.

The warrants

On March 25, 2004, Judge Donald E. Belfi issued an eavesdropping warrant authorizing the interception of telephonic and electronic communications to or from telephone number (516) 354-9860, which was listed to Copperfield's Pub located at 247 Jericho Turnpike, New Hyde Park, NY The warrant also authorized interception of electronic communications over wireless number (718) 986-3900, subscribed to by defendant Scott Rothman. The warrant authorized the interception of communications relating to the crimes of promoting gambling in the first and second degrees, possession of gambling records in the first and second degrees, and conspiracy to commit those crimes.

The application for the eavesdropping warrant, which was signed by District Attorney Denis Dillon, was based upon an affidavit by Det. Joseph Hill. In his affidavit, Det. Hill stated that on August 11, 2003 there had been a fire at a stationary store located next door to the Copperfield's Pub which appeared to be the result of arson. The apparent reason for the arson was that the owners of the stationary store had made numerous complaints about Copperfield's. On August 15, Det. Hill, operating undercover, visited Copperfield's and played "Joker Poker," a form of video gambling, on one of two currency-operated Joker Poker machines that were in the pub. On August 22, Det. Hill, accompanied by another detective, visited Copperfield's and again played Joker Poker. On that evening, Det. Hill spoke with the bartender, whose name was Scott. Scott observed the Joker Poker game, explained the rules, kept track of the score, and paid out the winnings to another player. On October 9, the detectives again visited Copperfield's and observed Scott receiving phone calls on the phone behind the bar. Scott wrote information on a piece of paper during the calls. Det. Hill discussed placing a bet with Scott who said that Vinny Pellizzi, the other bartender, "took action," that is accepted wagers. Scott told Det. Hill that he would "vouch" for him and gave the detective his cell phone number which was (718) 986-3900. According to the records of Verizon Wireless, that cell phone number was subscribed to by Scott Rothman, 1430 72nd Street, Brooklyn, NY. Det. Hill subsequently spoke to Vinny who agreed to open a sports betting account for the detective with a $1,000 credit limit. The detective made a series of bets on the account, which he accessed through the internet and phone numbers provided by Vinny and Rothman. The detective called Rothman's cell phone frequently to discuss the wagers with him and also observed Rothman using his cell phone to obtain the scores of sporting events.

On April 23, 2004, the date the original warrant was due to expire, Judge Belfi issued an [*3]extended and amended eavesdropping warrant, authorizing the continued interception of conversations relating to gambling offenses on the Copperfield's phone and Rothman's cell phone. The April 23 warrant extension also authorized interception of communications over a wireless telephone subscribed to by Carmine Graziano and another wireless number subscribed to by Paul Silano.

The April 23 warrant extension was based upon intercepted conversations between Rothman and Paul Silano. The conversations indicated that Rothman was a "runner," that is he accepted bets for two bookmakers, Paul Silano and Carmine Graziano, the owner of Copperfield's. Of particular relevance to the present charges, in a conversation with Silano on April 12, 2004, Rothman stated that he "got involved this week on the sheet and I got crushed." Silano asked him, "Yourself personally?" Rothman responded, "Yeah." Affidavit of Det. Lella at 11. Thus, it appears that Rothman had begun betting for his own account and was concerned about how to cover his losses of approximately $2,700.

On April 29, 2004, Judge Belfi issued an amended eavesdropping warrant retrospectively and prospectively authorizing the interception of conversations on defendant Rothman's cell phone relating to the sale and possession of controlled substances. The April 29 amended warrant was based upon an affidavit by Det. Hill. In the affidavit, Det. Hill states that he intercepted a cell phone conversation between Rothman and his sister Jennifer on April 22 in which they were discussing an incident during which Carmine Graziano and Vinny, who is Jennifer's husband, consumed an ounce of cocaine. Det. Hill stated that later that day he met Rothman at Copperfield's and asked him whether a man by the name of Andrew Ragavanis could sell him an ounce of cocaine. Rothman had previously introduced the detective to Ragavanis who had already sold him $3,000 worth of marihuana. Subsequent to the meeting, Det. Hill intercepted several phone calls in which Rothman discussed purchasing an ounce of cocaine with Vinny, Jennifer, and an (at that point) unknown individual.

The People seek to introduce evidence of conversations intercepted over Rothman's cell phone between Rothman and Napolitano concerning the April 29, 2004 drug sale as well as conversations intercepted over Rothman's cell phone between Rothman and others relating to the May 6, 2004 transaction. The People do not seek to introduce evidence of any intercepted conversations made over the Copperfield's phone.

Probable Cause

CPL § 700.15 provides that an eavesdropping warrant may issue only upon probable cause to believe that i) a particularly described person is committing a particular designated offense, ii) particular communications concerning such offense will be obtained through eavesdropping, and iii) the facilities from which the communications are to be intercepted are being used by such person. CPL 700.05(8) defines "designated offense" as including both gambling and controlled substances offenses. The quantum of evidence required for probable cause for an eavesdropping warrant is the same as that for a search warrant. People v. Manuli, 104 AD2d 386 (2d Dep't 1984). While probable cause does not require the same quantum of proof necessary to warrant a conviction, it must appear to be at least more probable than not that a crime has taken place and that the defendant is its perpetrator. People v. Carrasquillo, 54 NY2d 248, 254 (1981).

In arguing that the eavesdropping warrants were not supported by probable cause, [*4]defendant Rothman maintains that the off-shore gambling operation that he is charged with participating in is not illegal in the country or area where it was located. However, the police officers who were conducting the investigation were not required to establish a legally sufficient case against defendant but only that it was more likely than not that he was engaging in criminal activity. The evidence in support of the applications for the March 25 warrant and the April 23 extension demonstrated that it was more likely than not that Scott Rothman was committing the offenses of promoting gambling and possession of gambling records and that communications concerning those offenses would be obtained through eavesdropping, both with respect to the Copperfield's phone and Rothman's cell phone. With respect to the April 29 amended warrant, the evidence submitted in support of the application established probable cause to believe that Rothman was also involved in drug activity.

Alternative means of investigation

CPL 700.15 further provides that an eavesdropping warrant may issue only upon a showing that normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous to employ. The requirement of exhaustion of conventional means of investigation does not demand that every possible means must in fact be tried. People v. Versace, 73 AD2d 304 (2d Dep't 1980). Rather, the exhaustion requirement must be viewed in a "practical and common sense fashion." People v. Gallina, 95 AD2d 336 (2d Dep't 1983). The requirement may be satisfied by establishing the nature and progress of the investigation and the difficulties inherent in the use of normal law enforcement methods. People v. Brown, 233 AD2d 764 (3d Dep't 1996). In the case at bar, similar to Brown, the investigating officers were unable to identify the supplier of the cocaine or to infiltrate the distribution network without an eavesdropping warrant. Accordingly, the court concludes that the exhaustion requirement was satisfied.

Minimization

The requirement that police officers "minimize" the interception of electronic conversations has its underpinnings in the Fourth Amendment's prohibition upon unreasonable searches and seizures. Minimization is also based upon the Fourth Amendment's more specific mandate that search warrants contain provisions "particularly describing the place to be searched and the persons or things to be seized." Thus, the minimization requirement is founded upon the Supreme Court's concern that in investigations utilizing eavesdropping techniques, "no greater invasion of privacy ...than [is] necessary under the circumstances" should be permitted. Berger v. New York, 388 U.S. 41, 57 (1967).

Minimization does not require that all non-pertinent communications be free from interception in their entirety. People v. Floyd, 41 NY2d 245, 249 (1976). Such a standard would be unrealistic and virtually impossible to satisfy. Especially in narcotics cases, crime-related conversations may be prefaced by innocent "chatter," and some minor degree of intrusion must take place before a determination of pertinency can be made. Id. Minimization is defined as a good faith and reasonable effort to keep the number of non-pertinent calls intercepted to the smallest practicable number. Id. The determination whether minimization has been achieved must be made on a case-by-case basis with regard to the scope and circumstances of the particular investigation under review. Id. At a minimization hearing, the burden lies with the [*5]People "of going forward to show the legality of the police conduct in the first instance." People v. DiStefano, 38 NY2d 640, 652 (1976). This burden may be satisfied by demonstrating that procedures were established to minimize interception of non-pertinent communications and that a conscientious effort was made to follow such procedures. People v. Floyd, 41 NY2d at 250. Once the People carry their burden of going forward, the burden shifts to the defendant to rebut the People's prima facie showing that minimization procedures were established and complied with. Id.

In opposing a minimization hearing, the People rely upon cases from the federal courts which tend to avoid such hearings by deciding the minimization motion upon the papers submitted to the court. See, e.g. U.S. v. Cirillo, 499 F.2d 872 (2d Cir. 1974). In Cirillo, the court found that affidavits by the prosecutors and the federal agent who supervised the investigation, supplemented by logs and tape recordings of the actual intercepted phone calls, were sufficient to establish a prima facie showing of compliance with the minimization requirement. The appellate court held that absent evidence that a substantial number of non-pertinent conversations were intercepted unreasonably, the trial court could deny a minimization hearing.

Despite the reluctance of federal courts to grant minimization hearings, this court concludes that such a hearing should be granted in the present case. As suggested above, a minimization hearing is a type of suppression hearing to determine whether the Fourth Amendment has been violated. As our Court of Appeals noted in People v. Mendoza, 82 NY2d 415 (1993), Mapp or Dunaway hearings are not automatic or available for the asking by boilerplate allegations. Rather, the factual sufficiency of applications for such hearings should be determined with reference to the face of the pleadings, the context of the motion, and defendant's access to information. Id.

With regard to the face of the pleadings, counsel for defendant Rothman has set forth in his affirmation only twelve intercepted telephone conversations which he claims were not properly minimized. Of those twelve conversations, the People have stipulated not to offer four of them into evidence at trial. Thus, the papers before the court set forth only eight conversations as to which there is a dispute as to whether minimization was carried out correctly. The context of the motion is the series of approximately 1,270 telephone conversations engaged in by the defendants. The defendants are presumably able to recollect their own conversations, at least when refreshed by the recordings, and to have a sense of the matters which they discussed.

With respect to defendant's access to information, the People have turned over to defendant several compact discs containing all of the intercepted conversations, as well as the line sheets and minimization instructions. While defendant stresses that a transcript of all interceptions has not been produced, the People are not under a burden to provide one to the defendant. People v. Floyd, 41 NY2d at 254.

The People rely upon statistical evidence suggesting that less than 1% of the calls intercepted over Rothman's cell phone were even arguably not minimized. However, the court must treat such evidence "with caution" because it is not determinative of the minimization issue. People v. Floyd, 41 NY2d at 252. Although such evidence is not determative of the issue, the court rules as a matter of law that the defendants have not made a showing that there was no attempt at minimization. As a result, total suppression of all incriminating conversations is not [*6]available as a remedy in this case. People v. Brenes, 42 NY2d 41 (1977).

Despite the paucity of defendants' initial showing as compared to the People's evidence of the officers' good faith and conscientiousness in attempting to comply with the minimization instructions, the court, as a matter of discretion, grants the defendants a minimization hearing. See People v. Mendoza, 82 NY2d 415, supra. The hearing shall be limited to the question of whether those conversations which the People intend to offer into evidence were properly minimized. Accordingly, defendants' motions for suppression of the intercepted communications and any evidence derived therefrom are granted only to the extent that a minimization hearing, as so limited, shall be conducted upon a date to be determined by the court.

Discovery

Defendant Rothman seeks discovery of the original recordings of the intercepted communications as well as the recording devices which were used to execute the eavesdropping warrant. The intercepted communications, at least as to Rothman's cell phone, were simultaneously recorded both on the hard drive of a Nassau County Police Department computer and on DVD's which have been sealed pursuant to an order of Judge Belfi. Since the hard drive of the police department computer is not property which the People intend to introduce at trial, it is unclear that defendant has any right to such discovery. See CPL 240.40(1) (c). In any event, CPL 240.50 provides that the court may issue a protective order limiting discovery for good cause, including danger to the integrity of physical evidence, unjustified annoyance, adverse effect upon the legitimate needs of law enforcement, and any other factor outweighing the usefulness of discovery. In the absence of any showing by defendant that the copy of the recording provided to him is not accurate, defendant's application for discovery of the original recordings and recording equipment is denied.

Defendant Rothman further requests that the People specify which of the 1,270 intercepted conversations they intend to offer into evidence at trial. The CPL does not expressly compel pretrial discovery of evidentiary material which the prosecution intends to introduce at trial. People v. Colavito, 87 NY2d 423 (1996). However, the Court of Appeals noted in Colavito that the trial court, in its discretion, may order early prosecutorial disclosure under defined circumstances. In view of the need for this information at the minimization hearing, as a matter of discretion, the court directs the People to formally notify the defendants of those intercepted communications which they presently intend to introduce at trial. If the People decide to supplement the list of intercepted communications which they intend to offer, they shall immediately notify the defendants and the court.

Finally, upon consent of the People, defendant Napolitano's request to conduct forensic examination of the controlled substance allegedly sold and possessed by him is granted, subject to compliance with the requirements of the Nassau County Police Department and provided that

the forensic analysis is performed by a bona fide laboratory in Nassau or Suffolk counties.

So ordered.

Dated: July 13, 2005

______________________

Victor M. Ort, JSC Footnotes

Footnote 1:Although Napolitano was not a target of the eavesdropping warrant, because his conversations were intercepted he has standing to challenge the warrant. People v. Kramer, 92 NY2d 529 (1998).