People v. Rabb , 16 N.Y.3d 145 ( 2011 )

OPINION OF THE COURT

Pigott, J.

Defendants Reginald Rabb and Steven Mason—who ran P&D Construction Workers Coalition, a minority labor coalition¹— challenge the People’s March 31, 2005 eavesdropping warrant application on the ground that the People failed to establish that normal investigative measures had been exhausted, were reasonably unlikely to succeed if tried, or were too dangerous to employ (see CPL 700.15 [4]; 700.20 [2] [d]). Supreme Court denied defendants’ motions to suppress and defendants pleaded guilty. The Appellate Division affirmed the judgments upon their guilty pleas, holding that the People’s application adequately explained why normal investigative measures would be reasonably unlikely to succeed if tried (66 AD3d 487 [2009]). Because there is record support for that conclusion, we now affirm.

I.

In 2002, the Labor Racketeering Unit of the New York County District Attorney’s Office (LRU) began investigating the activities of a minority labor coalition called Akbar’s Community Services. Akbar was run by Derrick Walker and his associate Frederick Rasberry, who utilized the coalition to force construction companies, under the threat of vandalism or intimidation, to hire coalition workers and/or pay money for “security” from intimidation from other labor coalitions. During a three-year investigation into Akbar’s practices, the LRU’s investigatory techniques included, among other things, placing a senior LRU investigator undercover as a construction company owner whereby he paid Rasberry $800 a month for “security” from other coalitions and conducting numerous interviews with construction company personnel about Akbar’s practices.

The Akbar investigation uncovered certain coercive techniques engaged in by P&D. During one interview with a construction company president in May 2004, an LRU investigator inquired as to whether he had been contacted by Walker or Rasberry. He responded that he had not, but that he had been contacted by P&D. He produced a business card listing the name “Divine”² and a cellular phone number. Upon analyzing the billing records for Walker’s and Rasberry’s cell phones, investigators learned that the “Divine” cell phone number was registered to one Carol Rabb. LRU cross-referenced the number with a minority labor coalition list and discovered that the contact person for P&D went by the name of “Divine Organizer.” Moreover, according to billing records, between January and July 2004, over 70 calls were made between the “Divine” number and the numbers belonging to Walker and Rasberry.

On January 19, 2005, with the support of an affidavit from a senior LRU investigator, the People obtained eavesdropping warrants against the Akbar targets, Walker and Rasberry.³ Shortly after an extension of the Walker/Rasberry warrant was obtained on February 1, 2005, a representative of another construction company advised an LRU investigator that she had been approached by a P&D “business agent” who demanded that she put workers from the community on the job site, and left her his business card, which had the name “CEO Divine Allah” typed on the card and the same cellular phone number given to the other contractor.

After obtaining a second extension against Walker and Rasberry on March 1, 2005, the People obtained an eavesdropping warrant against Rabb on March 31, 2005, setting forth the same goals that they had relative to the Walker/Rasberry investigation: to determine the full scope of Rabb’s leadership position in P&D and gather sufficient evidence to prosecute the participants in that illegal conduct. The People later obtained an eavesdropping warrant against Mason’s cell phone on November 9, 2005 in furtherance of the same goals.

Defendants were indicted by the New York County grand jury for, among other crimes, enterprise corruption and grand larceny in the second degree. They moved pursuant to CPL 710.20 to suppress evidence obtained from the eavesdropping warrants, claiming that the March 31, 2005 application for the eavesdropping warrant for Rabb’s cell phone—the only application that defendants challenge on this appeal⁴—did not meet the dictates of CPL 700.15 (4). After Supreme Court denied defendants’ respective motions, Rabb pleaded guilty to enterprise corruption, grand larceny in the second degree (two counts), attempted grand larceny in the second degree and criminal possession of a weapon in the fourth degree, and was sentenced as a second felony offender to an aggregate term of 8½ to 17 years’ imprisonment. Mason pleaded guilty to the same crimes—save for the criminal possession of a weapon charge—and was sentenced as a second felony offender to an aggregate term of 7½ to 15 years’ imprisonment. Each defendant appealed the judgment upon his guilty plea to obtain review of the denial of his suppression motion.

The Appellate Division affirmed (66 AD3d 487 [2009]) and a Judge of this Court granted defendants leave to appeal (People v Mason, 13 NY3d 940 [2010], 14 NY3d 759 [2010]; People v Rabb, 13 NY3d 941 [2010]).

II.

Criminal Procedure Law § 700.15 (4) provides that an eavesdropping warrant may issue only “[u]pon 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.”

In addition, an application for an eavesdropping warrant must contain “[a] full and complete statement of facts” establishing that one of the requirements of section 700.15 (4) has been met (CPL 700.20 [2] [d]). It is not coincidental that the language of the aforementioned CPL provisions is substantively identical to federal standards set forth in 18 USC § 2518 (3) (c) and (1) (c), respectively, since it was the Legislature’s intention to “conform ‘State standards for court-authorized eavesdropping warrants with federal standards’ ” (People v McGrath, 46 NY2d 12, 26 [1978], cert denied 440 US 972 [1979], quoting Governor’s Approval Mem, Bill Jacket, L 1969, ch 1147, 1969 NY Legis Ann, at 586; see United States v Lilla, 699 F2d 99, 102 [2d Cir 1983]). These statutory requirements ensure that wiretaps are not routinely employed as an initial step in a criminal investigation and are used only after the applicant states, and the court finds, that the dictates of sections 700.15 (4) and 700.20 (2) (d) have been met (see generally United States v Giordano, 416 US 505, 515 [1974] [referencing the federal statutory counterparts to the state provisions]).

The Legislature sought, through its enactment of CPL article 700, to balance competing policies, namely, the protection of “[t]he right of privacy, to which unsupervised eavesdropping poses a great threat . . . against society’s interest in protecting itself against crime” (Report of New York State Joint Legislative Committee On Crime, Its Causes, Control & Effect on Society, 1968 NY Legis Doc No. 81, at 44). Significantly, the Legislature took special note of the importance of eavesdropping as it related to organized crime, observing that, “[d]ue to the tight structure of organized crime groups, their use of brutal force to discourage informants, and the high degree to which key members have insulated themselves from criminal liability, standard law enforcement techniques generally result in the conviction of only lower echelon rank and file members” of those groups (id.). Then-Governor Rockefeller likewise acknowledged that the eavesdropping law would afford law enforcement “greater flexibility in the employment of eavesdropping as an effective weapon against crime” and, in particular, organized crime, “where the obtaining of evidence for successful prosecutions is often extremely difficult” (Governor’s Approval Mem, Bill Jacket, L 1969, ch 1147, 1969 NY Legis Ann, at 586). With those objectives in mind, we now address the merits of defendants’ arguments.

III.

Defendants do not challenge Supreme Court’s conclusion that the eavesdropping warrant was issued based upon probable cause; it is evident from this record that the People established probable cause to believe that defendants were committing designated criminal offenses and that communications concerning those offenses would be obtained through eavesdropping (see CPL 700.15 [2], [3]). Rather, defendants assert, in essence, that the People improperly utilized eavesdropping as a first step in the Rabb/Mason investigation and failed to provide a particularized showing that normal investigative procedures were unlikely to succeed, relying instead on conclusory statements concerning their experience in the Walker/Rasberry investigation. Defendants further claim that the successful use of physical surveillance, undercover operations, witness interviews and search warrants in the Walker/Rasberry investigation demonstrated that the warrant application here failed to establish that normal investigative procedures were unlikely to succeed against defendants.

We disagree and conclude that there is record support for the findings by Supreme Court and the Appellate Division that the People’s application complied with sections 700.15 (4) and 700.20 (2) (d) (see People v Wheeler, 2 NY3d 370, 373 [2004]). Contrary to defendants’ contention, it is evident from the People’s application that LRU did not resort to wiretapping as a routine, initial step in its investigation of P&D. The application refers to the May 2004 contact between a P&D representative and a construction contractor, explains that the phone number given to the contractor was registered to Carol Rabb, and states that the LRU’s cross-referencing of that number with a list of minority coalitions indicated the name “Divine” and “Divine’s” phone number as contact information for P&D. Moreover, LRU’s undercover officer, who was posing as a construction contractor, asked Rasberry if there were any other coalitions that could cause trouble at his job site, and Rasberry identified P&D as one of them. Finally, analysis of billing records for the “Divine” cell phone unearthed numerous calls to Walker and Rasberry, calls to construction companies with known ties to organized crime, and calls to construction companies that were also contacted by Akbar.

The application also outlined collusive efforts between Akbar and P&D members. For instance, LRU uncovered evidence that between February 2, 2005 and March 25, 2005, there were 63 calls between Walker’s and Rabb’s cell phones, some having been intercepted as a result of the Walker eavesdropping warrant. LRU investigators heard Walker and Rabb discussing collusive efforts between Akbar and P&D, including sharing information about job sites and assisting each other’s coalitions in coercing construction companies to hire their respective coalition members. At that point in the investigation, it was reasonable for LRU to. surmise that Akbar and P&D, although rival coalitions, joined forces when the opportunities presented themselves and that these coalitions shared similar objectives. LRU thereafter tried to identify Rabb by surveilling meetings that had been set up on intercepted calls but these efforts proved unsuccessful. Thus, there is plainly record support that LRU did not resort to eavesdropping as a first step in its investigation of defendants and, to the extent that defendants disagree with the lower courts’ interpretation of the facts in the application, such factual determinations are not further reviewable by this Court (see People v McRay, 51 NY2d 594, 601 [1980]).

There is likewise record evidence supporting the findings of the lower courts that LRU demonstrated that normal investigative procedures were unlikely to succeed. Although eavesdropping may not be used as a routine first step, law enforcement need not “exhaust all conceivable investigative techniques before resorting to electronic surveillance” (United States v Concepcion, 579 F3d 214, 218 [2d Cir 2009]). Indeed, “[a]n affidavit describing the standard techniques that have been tried and facts demonstrating why they are no longer effective is sufficient to support an eavesdropping order even if every other possible means of investigation has not been exhausted’ (United States v Terry, 702 F2d 299, 310 [2d Cir 1983] [emphasis supplied], cert denied sub nom. Williams v United States, 461 US 931 [1983]). Nor is law enforcement “required to resort to measures that will clearly be unproductive” (id.).

CPL 700.20 (2) requires, among other things, that the applicant advise the authorizing judicial officer of the nature and progress of the investigation along with an explanation as to what investigative techniques have been tried and failed or why it would be difficult to employ normal law enforcement techniques. This language “is simply designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime” (United States v Kahn, 415 US 143, 153 n 12 [1974] [discussing 18 USC § 2518 (1), the federal statutory counterpart to CPL 700.20 (2)]). Of course, the application must include more than “generalized and conclusory statements that other investigative procedures would prove unsuccessful” (Lilla, 699 F2d at 104).

Here, the People provided “some basis for concluding that less intrusive investigative procedures [were] not feasible” (United States v Howard, 350 Fed Appx 517, 519 [2d Cir 2009]). For instance, the LRU investigator explained that physical surveillance was of limited use because, although it might show subjects meeting with each other, it would rarely allow LRU to hear the conversations, and that any attempts by LRU investigators to get closer to the subjects to hear the conversations would render it more likely that the subjects would discover they were under investigation. He explained that, notwithstanding the undercover role he had assumed as a contractor—which was limited to his paying Rasberry $800 a month—other undercover efforts would not have enabled LRU to expose the full scope of Akbar’s activities, and were unlikely to be more successful with P&D. The application further explained the futility of conducting a grand jury investigation because many of the witnesses were participants in the criminal conduct, and victims of that conduct would be unlikely to testify out of fear of retaliation. Furthermore, the issuance of grand jury subpoenas to witnesses and custodians of business records would publicize the investigation, thereby foreclosing the use of other conventional investigatory techniques. Finally, the execution of search warrants would compromise the confidentiality of the investigation and assuredly apprise its targets, increasing the likelihood that they would destroy inculpatory records.

Because the People supported their application with reasons why normal investigative techniques would be ineffective as to Rabb, it is of no moment that they also utilized their experiences from the Walker/Rasberry investigation to inform their allegations against P&D. Contrary to defendants’ contentions, the People did not seek to eavesdrop based solely and primarily on how Akbar operated; the People had learned, through their interception of Walker/Rasberry conversations with P&D, the collusive nature of the relationship between Akbar and P&D, how P&D operated its business, and the similarity of their organizations and objectives. Therefore, it cannot be said that the People relied solely on past investigations into minority labor coalitions in general to support their assertion that normal investigative techniques would be generally unproductive in the P&D investigation (see United States v DiMuro, 540 F2d 503, 510-511 [1st Cir 1976], cert denied 429 US 1038 [1977]).

Equally unavailing is defendants’ argument that, because normal investigatory measures had succeeded in the Walker/ Rasberry investigation—including the use of physical surveillance, undercover operations, witness interviews and search warrants—the warrant application failed to establish that normal investigative measures were unlikely to succeed. The People explained why normal law enforcement techniques would be unlikely to succeed as against these defendants and there was a factual basis for these assertions. “Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely” (Concepcion, 579 F3d at 218 [citation and internal quotation marks omitted]).

IV

Upon conducting our limited review, we are satisfied that there is record support for the conclusions reached by the lower courts that the People’s application demonstrated that normal investigative measures would reasonably have been unlikely to succeed if tried. Accordingly, in each case, the order of the Appellate Division should be affirmed.

1 . Such coalitions originated in the 1960s as a legitimate means of assisting minority workers to obtain work in the construction industry.

2 . Rabb has not contested that he went by the name of “Divine” and, unless otherwise noted, he will be referred to by his real name.

3 . The application stated that, during the 30-month investigation into Akbar’s activities, physical surveillance had been ineffective in discerning the true nature of the relationships Walker and Rasberry had with the contractors, that a grand jury investigation would be futile since the witnesses were either participants in the crimes (who would receive full transactional immunity) or coalition victims wary of retaliation, and that the use of search warrants would be of little help in assisting law enforcement in determining Walker’s supervisory role in directing coalition members to violate the law.

4 . It is defendants’ position that, should the March 31, 2005 application fall, so too should the subsequent applications.