PEOPLE v. FIORE

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

The PEOPLE, etc., Appellant, v. Joseph FIORE, et al., Respondents.

Decided: January 26, 1998

Before JOY, J.P., and KRAUSMAN, FLORIO and McGINITY, JJ. Michael E. Bongiorno, District Attorney, New City (Ann C. Sullivan and Robert V. Magrino, of counsel), for appellant. Murray Richman, New York City, for respondents Joseph Fiore and William Decker. Mancuso, Rubin & Fufidio, White Plains (Andrew A. Rubin, of counsel), for respondent Anthony DePalma. Larkin, Axelrod & Trachte, P.C., Newburgh (John Ingrassia, of counsel), for respondent Melvin Amiel. Stephens, Baroni, Reilly & Lewis, L.L.P., White Plains (Stephen R. Lewis, of counsel), for respondent John Andriello.

Appeal by the People from an order of the County Court, Rockland County (Nelson, J.), dated January 17, 1997, which, after a hearing, granted those branches of the defendants' separate omnibus motions which were to suppress all evidence derived from a pen register order and eavesdropping warrant.

ORDERED that the order is modified, on the law, by deleting the provision thereof which granted those branches of the omnibus motions of the defendants Melvin Amiel and John Andriello which were to suppress all evidence derived from a pen register order and eavesdropping warrant and substituting therefor a provision denying those branches of their motions;  as so modified, the order is affirmed, and the matter is remitted to the County Court, Rockland County for further proceedings on the indictment.

 The County Court erred in granting the suppression motions of the defendants Melvin Amiel and John Andriello.   These defendants were not the target of the pen register order nor were they identified or referred to in the papers submitted in support of the order.   Accordingly, they have no standing to contest the implementation of the pen register order (see, People v. Kramer, 244 A.D.2d 426, 664 N.Y.S.2d 81).   Moreover, these defendants have no derivative right to challenge the propriety of the prior pen register order from which information was obtained which constituted a probable cause basis for the subsequent eavesdropping warrant (see, People v. Geraghty, 212 A.D.2d 358, 622 N.Y.S.2d 254;  People v. Varacalli, 154 Misc.2d 805, 808, 596 N.Y.S.2d 346).

 The County Court properly granted the suppression motions of the defendants Joseph Fiore, William Decker, and Anthony DePalma.   The People do not challenge the County Court's determination that these defendants, who were identified in the papers submitted in support of the pen register order, have standing to contest the use of the pen registers (see, People v. Kramer, supra).   Because the pen registers used in this case had the capacity to be modified to overhear conversations, and were installed without a warrant based on probable cause, all evidence obtained from them must be suppressed as to the defendants Joseph Fiore, William Decker, and Anthony DePalma (see, People v. Bialostok, 80 N.Y.2d 738, 594 N.Y.S.2d 701, 610 N.E.2d 374;  People v. Gilpin, 216 A.D.2d 62, 627 N.Y.S.2d 678).   Moreover, all evidence derived from the subsequent eavesdropping warrant must be suppressed.   Without the information obtained from the pen registers, the other evidence supporting the application did not provide probable cause for the issuance of the eavesdropping warrant (cf., People v. Bialostok, supra;  People v. Giordano, 211 A.D.2d 814, 817, 622 N.Y.S.2d 89, affd. 87 N.Y.2d 441, 640 N.Y.S.2d 432, 663 N.E.2d 588).

MEMORANDUM BY THE COURT.

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