PEOPLE v. MASON

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Steven MASON, Defendant-Appellant.

The People of the State of New York, Respondent, v. Reginald Rabb, Defendant-Appellant.

Decided: October 13, 2009

SAXE, J.P., NARDELLI, BUCKLEY, ACOSTA, FREEDMAN, JJ. Robert S. Dean, Center for Appellate Litigation, New York (William A. Loeb of counsel), for Steven Mason, appellant. Richard M. Greenberg, Office of the Appellate Defender, New York (Kerry S. Jamieson of counsel), for Reginald Rabb, appellant. Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), for respondent.

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered November 29, 2007, convicting defendant Steven Mason, upon his plea of guilty, of enterprise corruption, grand larceny in the second degree (two counts) and attempted grand larceny in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 7 1/212 to 15 years, unanimously affirmed.

Judgments, same court and Justice, rendered November 8, 2007, convicting defendant Reginald Rabb, upon his pleas of guilty, of 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 sentencing him, as a second felony offender, to an aggregate term of 8 1/212 to 17 years, unanimously affirmed.

The court properly denied defendants' motions to suppress evidence acquired from eavesdropping.   The eavesdropping warrants made the type of particularized showing of necessity required by CPL 700.15(4).   The affidavits were not conclusory, but instead provided detailed reasons why normal investigative procedures would likely be unsuccessful (compare United States v. DiMuro, 540 F.2d 503, 510-511 [1st Cir.1976], cert. denied 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 [1977], with United States v. Santora, 600 F.2d 1317 [9th Cir.1979] and People v. Fonville, 247 A.D.2d 115, 681 N.Y.S.2d 420 [1998] ).   The affiant's reliance on experience obtained in a closely related investigation into similar activities by other suspects was proper, because the affidavit was sufficiently specific in showing the connection between the two investigations.   Since defendants never attacked the credibility of the affiant, the court properly denied the motions without a hearing (see People v. Rock, 33 A.D.3d 334, 822 N.Y.S.2d 54 [2006], lv. denied 8 N.Y.3d 848, 830 N.Y.S.2d 707, 862 N.E.2d 799 [2007] ).