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ARTICLE 700--EAVESDROPPING AND VIDEO SURVEILLANCE WARRANTS
Section 700.05 Eavesdropping and video surveillance warrants;
definitions of terms.
700.10 Eavesdropping and video surveillance warrants; in
general.
700.15 Eavesdropping and video surveillance warrants; when
issuable.
700.20 Eavesdropping and video surveillance warrants;
application.
700.21 Temporary authorization for eavesdropping or video
surveillance in emergency situations.
700.25 Eavesdropping warrants; determination of application.
700.30 Eavesdropping and video surveillance warrants; form and
content.
700.35 Eavesdropping and video surveillance warrants; manner and
time of execution.
700.40 Eavesdropping and video surveillance warrants; order of
extension.
700.50 Eavesdropping and video surveillance warrants; progress
reports and notice.
700.55 Eavesdropping and video surveillance warrants; custody of
warrants, applications and recordings.
700.60 Eavesdropping warrants; reports to the administrative
office of the United States courts.
700.65 Eavesdropping and video surveillance warrants; disclosure
and use of information; order of amendment.
700.70 Eavesdropping warrants; notice before use of evidence.
S 700.05 Eavesdropping and video surveillance warrants; definitions of terms.
As used in this article, the following terms have the following
meanings:
1. "Eavesdropping" means "wiretapping", "mechanical overhearing of
conversation," or the "intercepting or accessing of an electronic
communication", as those terms are defined in section 250.00 of the
penal law, but does not include the use of a pen register or trap and
trace device when authorized pursuant to article 705 of this chapter.
2. "Eavesdropping warrant" means an order of a justice authorizing or
approving eavesdropping.
3. "Intercepted communication" means (a) a telephonic or telegraphic
communication which was intentionally overheard or recorded by a person
other than the sender or receiver thereof, without the consent of the
sender or receiver, by means of any instrument, device or equipment, or
(b) a conversation or discussion which was intentionally overheard or
recorded, without the consent of at least one party thereto, by a person
not present thereat, by means of any instrument, device or equipment; or
(c) an electronic communication which was intentionally intercepted or
accessed, as that term is defined in section 250.00 of the penal law.
The term "contents," when used with respect to a communication, includes
any information concerning the identity of the parties to such
communications, and the existence, substance, purport, or meaning of
that communication. The term "communication" includes conversation and
discussion.
3-a. "Telephonic communication", "electronic communication", and
"intentionally intercepted or accessed" have the meanings given to those
terms by subdivisions three, five, and six respectively, of section
250.00 of the penal law.
4. "Justice," except as otherwise provided herein, means any justice
of an appellate division of the judicial department in which the
eavesdropping warrant is to be executed, or any justice of the supreme
court of the judicial district in which the eavesdropping warrant is to
be executed, or any county court judge of the county in which the
eavesdropping warrant is to be executed. When the eavesdropping warrant
is to authorize the interception of oral communications occurring in a
vehicle or wire communications occurring over a telephone located in a
vehicle, "justice" means any justice of the supreme court of the
judicial department or any county court judge of the county in which the
eavesdropping device is to be installed or connected or of any judicial
department or county in which communications are expected to be
intercepted. When such a justice issues such an eavesdropping warrant,
such warrant may be executed and such oral or wire communications may be
intercepted anywhere in the state.
5. "Applicant" means a district attorney or the attorney general or if
authorized by the attorney general, the deputy attorney general in
charge of the organized crime task force. If a district attorney or the
attorney general is actually absent or disabled, the term "applicant"
includes that person designated to act for him and perform his official
function in and during his actual absence or disability.
6. "Law enforcement officer" means any public servant who is empowered
by law to conduct an investigation of or to make an arrest for a
designated offense, and any attorney authorized by law to prosecute or
participate in the prosecution of a designated offense.
7. "Exigent circumstances" means conditions requiring the preservation
of secrecy, and whereby there is a reasonable likelihood that a
continuing investigation would be thwarted by alerting any of the
persons subject to surveillance to the fact that such surveillance had
occurred.
8. "Designated offense" means any one or more of the following crimes:
(a) A conspiracy to commit any offense enumerated in the following
paragraphs of this subdivision, or an attempt to commit any felony
enumerated in the following paragraphs of this subdivision which attempt
would itself constitute a felony;
(b) Any of the following felonies: assault in the second degree as
defined in section 120.05 of the penal law, assault in the first degree
as defined in section 120.10 of the penal law, reckless endangerment in
the first degree as defined in section 120.25 of the penal law,
promoting a suicide attempt as defined in section 120.30 of the penal
law, criminally negligent homicide as defined in section 125.10 of the
penal law, manslaughter in the second degree as defined in section
125.15 of the penal law, manslaughter in the first degree as defined in
section 125.20 of the penal law, murder in the second degree as defined
in section 125.25 of the penal law, murder in the first degree as
defined in section 125.27 of the penal law, abortion in the second
degree as defined in section 125.40 of the penal law, abortion in the
first degree as defined in section 125.45 of the penal law, rape in the
third degree as defined in section 130.25 of the penal law, rape in the
second degree as defined in section 130.30 of the penal law, rape in the
first degree as defined in section 130.35 of the penal law, sodomy in
the third degree as defined in section 130.40 of the penal law, sodomy
in the second degree as defined in section 130.45 of the penal law,
sodomy in the first degree as defined in section 130.50 of the penal
law, sexual abuse in the first degree as defined in section 130.65 of
the penal law, unlawful imprisonment in the first degree as defined in
section 135.10 of the penal law, kidnapping in the second degree as
defined in section 135.20 of the penal law, kidnapping in the first
degree as defined in section 135.25 of the penal law, custodial
interference in the first degree as defined in section 135.50 of the
penal law, coercion in the first degree as defined in section 135.65 of
the penal law, criminal trespass in the first degree as defined in
section 140.17 of the penal law, burglary in the third degree as defined
in section 140.20 of the penal law, burglary in the second degree as
defined in section 140.25 of the penal law, burglary in the first degree
as defined in section 140.30 of the penal law, criminal mischief in the
third degree as defined in section 145.05 of the penal law, criminal
mischief in the second degree as defined in section 145.10 of the penal
law, criminal mischief in the first degree as defined in section 145.12
of the penal law, criminal tampering in the first degree as defined in
section 145.20 of the penal law, arson in the fourth degree as defined
in section 150.05 of the penal law, arson in the third degree as defined
in section 150.10 of the penal law, arson in the second degree as
defined in section 150.15 of the penal law, arson in the first degree as
defined in section 150.20 of the penal law, grand larceny in the fourth
degree as defined in section 155.30 of the penal law, grand larceny in
the third degree as defined in section 155.35 of the penal law, grand
larceny in the second degree as defined in section 155.40 of the penal
law, grand larceny in the first degree as defined in section 155.42 of
the penal law, robbery in the third degree as defined in section 160.05
of the penal law, robbery in the second degree as defined in section
160.10 of the penal law, robbery in the first degree as defined in
section 160.15 of the penal law, unlawful use of secret scientific
material as defined in section 165.07 of the penal law, criminal
possession of stolen property in the fourth degree as defined in section
165.45 of the penal law, criminal possession of stolen property in the
third degree as defined in section 165.50 of the penal law, criminal
possession of stolen property in the second degree as defined by section
165.52 of the penal law, criminal possession of stolen property in the
first degree as defined by section 165.54 of the penal law, trademark
counterfeiting in the first degree as defined in section 165.73 of the
penal law, forgery in the second degree as defined in section 170.10 of
the penal law, forgery in the first degree as defined in section 170.15
of the penal law, criminal possession of a forged instrument in the
second degree as defined in section 170.25 of the penal law, criminal
possession of a forged instrument in the first degree as defined in
section 170.30 of the penal law, criminal possession of forgery devices
as defined in section 170.40 of the penal law, falsifying business
records in the first degree as defined in section 175.10 of the penal
law, tampering with public records in the first degree as defined in
section 175.25 of the penal law, offering a false instrument for filing
in the first degree as defined in section 175.35 of the penal law,
issuing a false certificate as defined in section 175.40 of the penal
law, criminal diversion of prescription medications and prescriptions in
the second degree as defined in section 178.20 of the penal law,
criminal diversion of prescription medications and prescriptions in the
first degree as defined in section 178.25 of the penal law, escape in
the second degree as defined in section 205.10 of the penal law, escape
in the first degree as defined in section 205.15 of the penal law,
absconding from temporary release in the first degree as defined in
section 205.17 of the penal law, promoting prison contraband in the
first degree as defined in section 205.25 of the penal law, hindering
prosecution in the second degree as defined in section 205.60 of the
penal law, hindering prosecution in the first degree as defined in
section 205.65 of the penal law, criminal possession of a weapon in the
third degree as defined in subdivisions two, three, four and five of
section 265.02 of the penal law, criminal possession of a weapon in the
second degree as defined in section 265.03 of the penal law, criminal
possession of a dangerous weapon in the first degree as defined in
section 265.04 of the penal law, manufacture, transport, disposition and
defacement of weapons and dangerous instruments and appliances defined
as felonies in subdivisions one, two, and three of section 265.10 of the
penal law, sections 265.11, 265.12 and 265.13 of the penal law, or
prohibited use of weapons as defined in subdivision two of section
265.35 of the penal law, relating to firearms and other dangerous
weapons;
(c) Criminal possession of a controlled substance in the seventh
degree as defined in section 220.03 of the penal law, criminal
possession of a controlled substance in the sixth degree as defined in
section 220.05 of the penal law, criminal possession of a controlled
substance in the fifth degree as defined in section 220.06 of the penal
law, criminal possession of a controlled substance in the fourth degree
as defined in section 220.09 of the penal law, criminal possession of a
controlled substance in the third degree as defined in section 220.16 of
the penal law, criminal possession of a controlled substance in the
second degree as defined in section 220.18 of the penal law, criminal
possession of a controlled substance in the first degree as defined in
section 220.21 of the penal law, criminal sale of a controlled substance
in the fifth degree as defined in section 220.31 of the penal law,
criminal sale of a controlled substance in the fourth degree as defined
in section 220.34 of the penal law, criminal sale of a controlled
substance in the third degree as defined in section 220.39 of the penal
law, criminal sale of a controlled substance in the second degree as
defined in section 220.41 of the penal law, criminal sale of a
controlled substance in the first degree as defined in section 220.43 of
the penal law, criminally possessing a hypodermic instrument as defined
in section 220.45 of the penal law, criminal possession of marihuana in
the first degree as defined in section 221.30 of the penal law, criminal
sale of marihuana in the first degree as defined in section 221.55 of
the penal law, promoting gambling in the second degree as defined in
section 225.05 of the penal law, promoting gambling in the first degree
as defined in section 225.10 of the penal law, possession of gambling
records in the second degree as defined in section 225.15 of the penal
law, possession of gambling records in the first degree as defined in
section 225.20 of the penal law, and possession of a gambling device as
defined in section 225.30 of the penal law;
(d) Commercial bribing, commercial bribe receiving, bribing a labor
official, bribe receiving by a labor official, sports bribing and sports
bribe receiving, as defined in article one hundred eighty of the penal
law;
(e) Criminal usury, as defined in article one hundred ninety of the
penal law;
(f) Bribery in the third degree, bribery in the second degree, bribery
in the first degree, bribe receiving in the third degree, bribe
receiving in the second degree, bribe receiving in the first degree,
bribe giving for public office and bribe receiving for public office, as
defined in article two hundred of the penal law;
(g) Bribing a witness, bribe receiving by a witness, bribing a juror
and bribe receiving by a juror, as defined in article two hundred
fifteen of the penal law;
(h) Promoting prostitution in the first degree, as defined in section
230.32 of the penal law, promoting prostitution in the second degree, as
defined by subdivision one of section 230.30 of the penal law;
(i) Riot in the first degree and criminal anarchy, as defined in
article two hundred forty of the penal law;
(j) Eavesdropping, as defined in article two hundred fifty of the
penal law;
(k) Any of the acts designated as felonies in subdivisions two and
four of section four hundred eighty-one of the tax law, which section
relates to penalties under the tax on cigarettes imposed by article
twenty of such law, and any of the acts designated as felonies in
subdivision c of section 11-1317 of the administrative code of the city
of New York, which section relates to penalties under the cigarette tax
imposed by chapter thirteen of title eleven of such code.
(l) Scheme to defraud in the first degree as defined in article one
hundred ninety of the penal law.
(m) Any of the acts designated as felonies in section three hundred
fifty-two-c of the general business law.
(n) Any of the acts designated as felonies in title twenty-seven of
article seventy-one of the environmental conservation law.
(o) Money laundering in the first degree, as defined in section 470.20
of the penal law, money laundering in the second degree as defined in
section 470.15 of the penal law, money laundering in the third degree as
defined in section 470.10 of such law, and money laundering in the
fourth degree as defined in section 470.05 of such law, where the
property involved represents or is represented to be the proceeds of
specified criminal conduct which itself constitutes a designated offense
within the meaning of this subdivision.
(p) Stalking in the second degree as defined in section 120.55 of the
penal law, and stalking in the first degree as defined in section 120.60
of the penal law.
(q) Soliciting or providing support for an act of terrorism in the
second degree as defined in section 490.10 of the penal law, soliciting
or providing support for an act of terrorism in the first degree as
defined in section 490.15 of the penal law, making a terroristic threat
as defined in section 490.20 of the penal law, crime of terrorism as
defined in section 490.25 of the penal law, hindering prosecution of
terrorism in the second degree as defined in section 490.30 of the penal
law, and hindering prosecution of terrorism in the first degree as
defined in section 490.35 of the penal law.
(r) Falsely reporting an incident in the second degree as defined in
section 240.55 of the penal law, falsely reporting an incident in the
first degree as defined in section 240.60 of the penal law, placing a
false bomb in the second degree as defined in section 240.61 of the
penal law, placing a false bomb in the first degree as defined in
section 240.62 of the penal law, and placing a false bomb in a sports
stadium or arena, mass transportation facility or enclosed shopping mall
as defined in section 240.63 of the penal law.
(s) Identity theft in the second degree, as defined in section 190.79
of the penal law, identity theft in the first degree, as defined in
section 190.80 of the penal law, unlawful possession of personal
identification information in the second degree, as defined in section
190.82 of the penal law, and unlawful possession of personal
identification information in the first degree, as defined in section
190.83 of the penal law.
9. "Video surveillance" means the intentional visual observation by
law enforcement of a person by means of a television camera or other
electronic device that is part of a television transmitting apparatus,
whether or not such observation is recorded on film or video tape,
without the consent of that person or another person thereat and under
circumstances in which such observation in the absence of a video
surveillance warrant infringes upon such person`s reasonable
expectation of privacy under the constitution of this state or of the
United States.
10. "Video surveillance warrant" means an order of a justice
authorizing or approving video surveillance.
S 700.10 Eavesdropping and video surveillance warrants; in general.
1. Under circumstances prescribed in this article, a justice may
issue an eavesdropping warrant or a video surveillance warrant upon ex
parte application of an applicant who is authorized by law to
investigate, prosecute or participate in the prosecution of the
particular designated offense which is the subject of the application.
2. No eavesdropping or video surveillance warrant may authorize or
approve the interception of any communication or the conducting of any
video surveillance for any period longer than is necessary to achieve
the objective of the authorization, or in any event longer than thirty
days. Such thirty day period shall begin on the date designated in the
warrant as the effective date, which date may be no later than ten days
after the warrant is issued.
S 700.15 Eavesdropping and video surveillance warrants; when issuable.
An eavesdropping or video surveillance warrant may issue only:
1. Upon an appropriate application made in conformity with this
article; and
2. Upon probable cause to believe that a particularly described
person is committing, has committed, or is about to commit a particular
designated offense; and
3. Upon probable cause to believe that particular communications
concerning such offense will be obtained through eavesdropping, or upon
probable cause to believe that particular observations concerning such
offense will be obtained through video surveillance; and
4. Upon a showing 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; and
5. Upon probable cause to believe that the facilities from which, or
the place where, the communications are to be intercepted or the video
surveillance is to be conducted, are being used, or are about to be
used, in connection with the commission of such offense, or are leased
to, listed in the name of, or commonly used by such person.
S 700.20 Eavesdropping and video surveillance warrants; application.
1. An ex parte application for an eavesdropping or video surveillance
warrant must be made to a justice in writing, except as provided in
section 700.21 of this article, and must be subscribed and sworn to by
an applicant.
2. The application must contain:
(a) The identity of the applicant and a statement of the applicant`s
authority to make such application; and
(b) A full and complete statement of the facts and circumstances
relied upon by the applicant, to justify his belief that an
eavesdropping or video surveillance warrant should be issued, including
(i) a statement of facts establishing probable cause to believe that a
particular designated offense has been, is being, or is about to be
committed, (ii) a particular description of the nature and location of
the facilities from which or the place where the communication is to be
intercepted or the video surveillance is to be conducted, (iii) a
particular description of the type of the communications sought to be
intercepted or of the observations sought to be made, and (iv) the
identity of the person, if known, committing such designated offense and
whose communications are to be intercepted or who is to be the subject
of the video surveillance; and
(c) A statement that such communications or observations are not
otherwise legally privileged; and
(d) A full and complete statement of facts establishing 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, to obtain the evidence sought; and
(e) A statement of the period of time for which the eavesdropping or
video surveillance is required to be maintained. If the nature of the
investigation is such that the authorization for eavesdropping or video
surveillance should not automatically terminate when the described type
of communication has been first obtained or when the described type of
observation has been first made, a particular description of facts
establishing probable cause to believe that additional communications or
observations of the same type will occur thereafter; and
(f) A full and complete statement of the facts concerning all
previous applications, known to the applicant, for an eavesdropping or
video surveillance warrant involving any of the same persons, facilities
or places specified in the application, and the action taken by the
justice on each such application.
3. Allegations of fact in the application may be based either upon
the personal knowledge of the applicant or upon information and belief.
If the applicant personally knows the facts alleged, it must be so
stated. If the facts stated in the application are derived in whole or
part from the statements of persons other than the applicant, the
sources of such facts must be either disclosed or described, and the
application must contain facts establishing the existence and
reliability of the informants or the reliability of the information
supplied by them. The application must also state, so far as possible,
the basis of the informant`s knowledge or belief. Affidavits of persons
other than the applicant may be submitted in conjunction with the
application if they tend to support any fact or conclusion alleged
therein. Such accompanying affidavits may be based either on personal
knowledge of the affiant, or information and belief with the source
thereof and the reason therefor specified.
S 700.21 Temporary authorization for eavesdropping or video surveillance
in emergency situations.
1. In an emergency situation where imminent danger of death or serious
physical injury exists and, under the circumstances, it is impractical
for the applicant to prepare a written application without risk of such
death or injury occurring, an application for an eavesdropping or video
surveillance warrant need not be in writing but may be communicated to a
justice by telephone, radio or other means of electronic communication.
2. Where an oral application for an eavesdropping or video
surveillance warrant is made, the applicant therefor must identify
himself and the purpose of his communication or observation, after being
sworn as provided in subdivision three of this section. The application
must meet the requirements of section 700.20 of this article and provide
the same allegations of fact required by that section.
3. Upon being advised that an oral application for an eavesdropping or
video surveillance warrant is being made, a justice shall place under
oath the applicant and any other person providing information in support
of the application. Such oath or oaths and all of the remaining
communication must be recorded, either by means of a voice recording
device or verbatim stenographic or verbatim longhand notes. If a voice
recording device is used or a stenographic record made, the justice must
have the record transcribed, certify to the accuracy of the
transcription and file the original record and transcription with the
court within twenty-four hours of the issuance of a warrant. If longhand
notes are taken, the justice shall subscribe a copy and file it with the
court within twenty-four hours of the issuance of a warrant.
4. Upon oral application, the court may, where it finds that an
emergency situation exists and that the requirements of section 700.15
of this article have been satisfied, issue a temporary eavesdropping or
video surveillance warrant authorizing eavesdropping or video
surveillance for a period not to exceed twenty-four hours. Such
eavesdropping or video surveillance warrant shall be executed in the
manner prescribed by this article. The twenty-four hour period may not
be extended nor may a temporary warrant be renewed except by written
application in conformity with the requirements of this article.
S 700.25 Eavesdropping warrants; determination of application.
1. If the application conforms to section 700.20, the justice may
require the applicant to furnish additional testimony or documentary
evidence in support of the application. He may examine, under oath, any
person for the purpose of determining whether grounds exist for the
issuance of the warrant pursuant to section 700.15. Any such
examination must be either recorded or summarized in writing.
2. If the justice determines on the basis of the facts submitted by
the applicant that grounds exist for the issuance of an eavesdropping
warrant pursuant to section 700.15, the justice may grant the
application and issue an eavesdropping warrant, in accordance with
section 700.30.
3. If the application does not conform to section 700.20, or if the
justice is not satisfied that grounds exist for the issuance of an
eavesdropping warrant, the application must be denied.
S 700.30 Eavesdropping and video surveillance warrants; form and content.
An eavesdropping or video surveillance warrant must contain:
1. The name of the applicant, date of issuance, and the subscription
and title of the issuing justice; and
2. The identity of the person, if known, whose communications are to
be intercepted or who is to be the subject of video surveillance; and
3. The nature and location of the communications facilities as to
which, or the place where, authority to intercept or conduct video
surveillance is granted; and
4. A particular description of the type of communications sought to
be intercepted or of the type of observations to be made, and a
statement of the particular designated offense to which it relates; and
5. The identity of the law enforcement agency authorized to intercept
the communications or conduct the video surveillance; and
6. The period of time during which such interception or observation
is authorized, including a statement as to whether or not the
interception or video surveillance shall automatically terminate when
the described communication has been first obtained or the described
observation has been first made; and
7. A provision that the authorization to intercept or conduct video
surveillance shall be executed as soon as practicable, shall be
conducted in such a way as to minimize the interception of
communications or the making of observations not otherwise subject to
eavesdropping or video surveillance under this article, and must
terminate upon attainment of the authorized objective, or in any event
in thirty days; and
8. An express authorization to make secret entry upon a private place
or premises to install an eavesdropping or video surveillance device, if
such entry is necessary to execute the warrant; and
9. An order authorizing eavesdropping or video surveillance may direct
that providers of wire or electronic communication services furnish the
applicant information, facilities, or technical assistance necessary to
accomplish the interception unobtrusively and with a minimum of
interference with the services that the service provider accords the
party whose communications are to be intercepted. The order shall not
direct the service providers to perform the intercept or use the
premises of the service provider for such activity.
S 700.35 Eavesdropping and video surveillance warrants; manner and time
of execution.
1. An eavesdropping or video surveillance warrant must be executed
according to its terms by a law enforcement officer who is a member of
the law enforcement agency authorized in the warrant to intercept the
communications or conduct the video surveillance.
2. Upon termination of the authorization in the warrant,
eavesdropping or video surveillance must cease and as soon as
practicable thereafter any device installed for such purpose either must
be removed or must be permanently inactivated as soon as practicable by
any means approved by the issuing justice. Entry upon a private place
or premise for the removal or permanent inactivation of such device is
deemed to be authorized by the warrant.
3. The contents of any communication intercepted or of any
observation made by any means authorized by this article must, if
possible, be recorded on tape or wire or other comparable device. The
recording of the contents of any such communication or observation must
be done in such way as will protect the recording from editing or other
alterations.
4. In the event an intercepted communication is in a code or foreign
language, and the services of an expert in that foreign language or
code cannot reasonably be obtained during the interception period, where
the warrant so authorizes and in a manner specified therein, the
minimization required by subdivision seven of section 700.30 of this
article may be accomplished as soon as practicable after such
interception.
5. A good faith reliance by a provider of a wire or electronic
communication service upon the validity of a court order issued pursuant
to this article is a complete defense against any civil cause of action
or criminal action based solely on a failure to comply with this
article.
S 700.40 Eavesdropping and video surveillance warrants; order of
extension.
At any time prior to the expiration of an eavesdropping or video
surveillance warrant, the applicant may apply to the issuing justice,
or, if he is unavailable, to another justice, for an order of extension.
The period of extension shall be no longer than the justice deems
necessary to achieve the purposes for which it was granted and in no
event longer than thirty days. The application for an order of
extension must conform in all respects to the provisions of section
700.20 and, in addition, must contain a statement setting forth the
results thus far obtained from the interception, or a reasonable
explanation of the failure to obtain such results. The provisions of
sections 700.15 and 700.25 are applicable in the determination of such
application. The order of extension must conform in all respects to the
provisions of section 700.30. In the execution of such order of
extension the provisions of section 700.35 are applicable.
S 700.50 Eavesdropping and video surveillance warrants; progress
reports and notice.
1. An eavesdropping or video surveillance warrant may require reports
to be made to the issuing justice showing what progress has been made
toward achievement of the authorized objective and the need for
continued eavesdropping or video surveillance. Such reports shall be
made at such intervals as the justice may require.
2. Immediately upon the expiration of the period of an eavesdropping
or video surveillance warrant, the recordings of communications or
observations made pursuant to subdivision three of section 700.35 must
be made available to the issuing justice and sealed under his
directions.
3. Within a reasonable time, but in no case later than ninety days
after termination of an eavesdropping or video surveillance warrant, or
expiration of an extension order, except as otherwise provided in
subdivision four, written notice of the fact and date of the issuance of
the eavesdropping or video surveillance warrant, and of the period of
authorized eavesdropping or video surveillance, and of the fact that
during such period communications were or were not intercepted or
observation were or were not made, must be served upon the person named
in the warrant and such other parties to the intercepted communications
or subjects of the video surveillance as the justice may determine in
his discretion is in the interest of justice. Service reasonably
calculated to give affected parties the notice required by this
subdivision shall be effected within the time limits provided for herein
and in a manner prescribed by the justice. The justice, upon the filing
of a motion by any person served with such notice, may in his discretion
make available to such person or his counsel for inspection such
portions of the intercepted communications or video surveillance,
applications and warrants as the justice determines to be in the
interest of justice.
4. On a showing of exigent circumstances to the issuing justice, the
service of the notice required by subdivision three may be postponed by
order of the justice for a reasonable period of time. Renewals of an
order of postponement may be obtained on a new showing of exigent
circumstances.
S 700.55 Eavesdropping and video surveillance warrants; custody of
warrants, applications and recordings.
1. Applications made and warrants issued under this article shall be
sealed by the justice. Any eavesdropping or video surveillance warrant,
together with a copy of papers upon which the application is based,
shall be delivered to and retained by the applicant as authority for the
eavesdropping or video surveillance authorized therein. A copy of such
eavesdropping or video surveillance warrant, together with all the
original papers upon which the application was based, must be retained
by the justice issuing the same, and, in the event of the denial of an
application for such an eavesdropping or video surveillance warrant, a
copy of the papers upon which the application was based must be retained
by the justice denying the same. Such applications and warrants may be
disclosed only upon a showing of good cause before a court and may not
be destroyed except on order of the issuing or denying justice, and in
any event must be kept for ten years.
2. Custody of the recordings made pursuant to subdivision three of
section 700.35 may be wherever the justice orders. They may not be
destroyed except upon an order of the justice who issued the warrant and
in any event must be kept for ten years. Duplicate recordings may be
made for use or disclosure pursuant to the provisions of subdivisions
one and two of section 700.65 for investigations.
S 700.60 Eavesdropping warrants; reports to the administrative office of
the United States courts.
1. Within thirty days after the termination of an eavesdropping
warrant or the expiration of an extension order, the issuing or denying
justice must submit such report to the administrative office of the
United States courts as is required by federal law.
2. In January of each year, the attorney general and each district
attorney must submit such report to the administrative office of the
United States courts as is required by federal law.
S 700.65 Eavesdropping and video surveillance warrants; disclosure and
use of information; order of amendment.
1. Any law enforcement officer who, by any means authorized by this
article, has obtained knowledge of the contents of any intercepted
communication or video surveillance, or evidence derived therefrom, may
disclose such contents to another law enforcement officer to the extent
that such disclosure is appropriate to the proper performance of the
official duties of the officer making or receiving the disclosure.
2. Any law enforcement officer who, by any means authorized by this
article, has obtained knowledge of the contents of any intercepted
communication or video surveillance, or evidence derived therefrom, may
use such contents to the extent such use is appropriate to the proper
performance of his official duties.
3. Any person who has received, by any means authorized by this
article, any information concerning a communication or video
surveillance, or evidence derived therefrom, intercepted or conducted in
accordance with the provisions of this article, may disclose the
contents of that communication or video surveillance, or such derivative
evidence, while giving testimony under oath in any criminal proceeding
in any court, in any grand jury proceeding or in any action commenced
pursuant to article thirteen-A or thirteen-B of the civil practice law
and rules; provided, however, that the presence of the seal provided for
by subdivision two of section 700.50, or a satisfactory explanation of
the absence thereof, shall be a prerequisite for the use or disclosure
of the contents of any communication or video surveillance, or evidence
derived therefrom; and provided further, however, that where a criminal
court of competent jurisdiction has ordered exclusion or suppression of
the contents of an intercepted communication or video surveillance, or
evidence derived therefrom, such determination shall be binding in an
action commenced pursuant to article thirteen-A or thirteen-B of the
civil practice law and rules.
4. When a law enforcement officer, while engaged in intercepting
communications or conducting video surveillance in the manner authorized
by this article, intercepts a communication or makes an observation
which was not otherwise sought and which constitutes evidence of any
crime that has been, is being or is about to be committed, the contents
of such communications or observation, and evidence derived therefrom,
may be disclosed or used as provided in subdivisions one and two. Such
contents and any evidence derived therefrom may be used under
subdivision three when a justice amends the eavesdropping or video
surveillance warrant to include such contents. The application for such
amendment must be made by the applicant as soon as practicable by giving
notice to the court of the interception of the communication or the
making of the observation and of the contents of such interception or
observation; provided that during the period in which the eavesdropping
or video surveillance is continuing, such notice must be given within
ten days after probable cause exists to believe that a crime not named
in the warrant has been, is being, or is about to be committed, or at
the time an application for an order of extension is made pursuant to
section 700.40 of this article, if such probable cause then exists,
whichever is earlier. If the justice finds that such contents were
otherwise intercepted in accordance with the provisions of this article,
he may grant the application.
S 700.70 Eavesdropping warrants; notice before use of evidence.
The contents of any intercepted communication, or evidence derived
therefrom, may not be received in evidence or otherwise disclosed upon a
trial of a defendant unless the people, within fifteen days after
arraignment and before the commencement of the trial, furnish the
defendant with a copy of the eavesdropping warrant, and accompanying
application, under which interception was authorized or approved. This
fifteen day period may be extended by the trial court upon good cause
shown if it finds that the defendant will not be prejudiced by the
delay in receiving such papers.
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