PEOPLE v. BARBOSA (2008)

In each appeal, the People appeal from an order granting those parts of defendants' respective omnibus motions seeking to suppress all evidence obtained as a result of eavesdropping warrants (see CPL 450.20[8];  450.50[1] ).   We affirm.   As County Court properly determined in granting those parts of the motions, the applications submitted in support of the eavesdropping warrants failed to establish 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” (CPL 700.15[4];  see People v. Viscomi, 113 A.D.2d 76, 495 N.Y.S.2d 298, lv. denied 67 N.Y.2d 658, 499 N.Y.S.2d 1055, 490 N.E.2d 572).   Here, the record establishes that the police resorted to wiretapping even though “the effort expended by the police was minimal” prior to applying for the eavesdropping warrants (People v. Candella, 171 A.D.2d 329, 332, 578 N.Y.S.2d 286;  see People v. Fonville, 247 A.D.2d 115, 121-122, 681 N.Y.S.2d 420), their investigation was of short duration (see Fonville, 247 A.D.2d at 122, 681 N.Y.S.2d 420;  Candella, 171 A.D.2d at 332, 578 N.Y.S.2d 286), and there was a lack of demonstrated impediments to further “normal investigative procedures” (CPL 700.15[4];  see Candella, 171 A.D.2d at 332-333, 578 N.Y.S.2d 286;  Viscomi, 113 A.D.2d at 77-78, 495 N.Y.S.2d 298).

It is hereby ORDERED that the order so appealed from is unanimously affirmed and the indictment is dismissed.

MEMORANDUM: