PEOPLE v. PETERSON (2005)

On appeal from an order denying his CPL 440.10 motion to vacate a judgment of conviction, defendant contends that he was denied effective assistance of counsel at his trial on the ground that counsel failed to make a motion to suppress eavesdropping tapes based on an alleged violation of CPL 700.50(2).   Defendant has failed to establish that “the motion, if made, would have been successful and has failed to establish that counsel failed to provide meaningful representation” (People v. Ayala, 236 A.D.2d 802, 803, 654 N.Y.S.2d 59, lv. denied 90 N.Y.2d 855, 661 N.Y.S.2d 181, 683 N.E.2d 1055;  see People v. Johnson, 11 A.D.3d 979, 979-980, 782 N.Y.S.2d 235, lv. denied 3 N.Y.3d 757, 788 N.Y.S.2d 674, 821 N.E.2d 979;  People v. Clark, 6 A.D.3d 1066, 1067, 776 N.Y.S.2d 656, lv. denied 3 N.Y.3d 638, 782 N.Y.S.2d 409, 816 N.E.2d 199).

Pursuant to CPL 700.50(2), immediately upon expiration of the period of an eavesdropping warrant, the recordings of communications “must be made available to the issuing judge and sealed under his [or her] directions.”   Eavesdropping warrants expire either on the expiration date set forth in the warrant or “upon attainment of the authorized objective” (CPL 700.30[7];  see People v. Bialostok, 80 N.Y.2d 738, 746-747, 594 N.Y.S.2d 701, 610 N.E.2d 374;  People v. Fonville, 247 A.D.2d 115, 126, 681 N.Y.S.2d 420).   The tapes were sealed before the expiration date set forth in the warrant, but defendant contends that the tapes should have been sealed on the date he was arrested because, at that time, the People had attained their authorized objective.   Contrary to that contention, the record establishes that there were many targets of the investigation and thus we agree with the People that they had not “ ‘completely achieved’ ” the investigative objectives of the warrant at the time of defendant's arrest (Fonville, 247 A.D.2d at 126, 681 N.Y.S.2d 420).   We therefore conclude that defendant has failed to establish that the motion, if made, would have been successful and thus failed to establish that he was denied effective assistance of counsel (see Clark, 6 A.D.3d at 1067, 776 N.Y.S.2d 656).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: