People v. Heffner

PATRICK J. McGRATH, J. The above-named defendant stands charged with the crimes of sexual abuse in the second degree (six counts), in violation of section 130.60 (2), and endangering the welfare of a child, in violation of section 260.10 (1), of the Penal Law. Defendant has moved to suppress physical evidence consisting of tape-recorded conversations between the defendant and the victim-complainant. The People do not refute the fact that the victim's parents surreptitiously recorded telephone conversations between the victim and defendant. Therefore, it is undisputed that neither party to the telephone conversation consented to the tape recording. Defendant claims that the tape recording of the phone conversations violated her Federal and State rights to be free from unreasonable searches and seizures and also that the recordings were obtained in violation of the Federal and State eavesdropping laws. CPL 710.20 (2) provides for suppression of evidence consisting "of a record or potential testimony reciting or describing declarations, conversations, or other communications overheard, intercepted, accessed, or recorded by means of eavesdropping." Eavesdropping means wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication as those terms are defined in section 250.00 of the Penal Law (CPL 710.10 [4]). Section 250.05 of the Penal Law sets forth the felony crime of eavesdropping. A person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication. "Wiretapping" and "mechanical overhearing of a conversation" are specifically defined as the overhearing or recording of a conversation without the consent of at least one party thereto (Penal Law § 250.00 [1], [2]). CPLR 4506 (1) precludes the admissibility of any tape recordings obtained in violation of section 250.05 of the Penal Law. The proscription of CPLR 4506 is applicable to both criminal and civil trials. The exclusionary provisions apply not simply to eavesdropping evidence unlawfully obtained by law "JUROR: No, I just want to see so I can refer to it. "ADA: You want the transcript? Let me see if I can get those for you." A copy of the transcript was then given to each grand juror. The victim's father testified extensively about the taped conversations as well as creation of the tapes. The next witness to testify was an investigator from the New York State Police. The investigator had interviewed the defendant. The Assistant District Attorney asked why the investigator asked the defendant certain questions to which the investigator responded, "Because, after listening to the tape-recorded conversations between her, Mrs. Heffner, and the child, I had many questions to ask her; these specifically." The investigator further testified that, "There were conversations on the tapes between Mrs. Heffner and the child that led me, as a police officer, to feel that an investigation into these conversations was warranted. My experience tells me something may have been going on that needed looking into." It is obvious from all of the above that the tape-recorded phone conversations were an integral part of the Grand Jury proceeding and their admission as well as the testimony elicited in relation to the tapes impaired the integrity of the Grand Jury and may have resulted in prejudice to the defendant. This is not a case of an isolated error with otherwise overwhelming proof and therefore no possibility of prejudice to the defendant (compare, People v Hardison, 181 AD2d 506, 507, lv denied 79 NY2d 1050). Therefore, defendant's motion to dismiss the indictment, pursuant to CPL 210.20 (1) (c) and 210.35 (5), is granted. In view of the above, the court need not determine whether the off-the-record conversations by the Assistant District Attorney concerned substantive matters in violation of CPL 190.25 (6), and, if so, whether the violation created the necessary prejudice to trigger the provisions of CPL 210.35 (5) (see, People v Perry, 199 AD2d 889, 894, lv denied 83 NY2d 856; People v Erceg, 82 AD2d 947). Also, the court need not address any remaining arguments by the defendant.