The People have made an application for an order authorizing them to unseal and reproduce portions of certain conversations intercepted pursuant to an authorized eavesdropping order in order to disclose them to the defendant and his attorney. The People also ask that defendant and his attorney be directed not to divulge the contents to any unauthorized third [*2]person. Defendant has cross-moved for an order disqualifying this Court because the "Judge's impartiality might reasonably be questioned" and for denial of the People's request for a court order. The People have submitted an affirmation in response to defendant's cross-motion.

Some background:

In 2004, the Honorable James Hudson signed eavesdropping orders for certain telephone instruments as well as eavesdropping warrants for certain communications and conversations occurring at a catering hall and a diner in Suffolk County. On September 21, 2004, defendant was charged under the above indictment with bribe receiving, second degree; bribery, second degree; coercion, first degree, and conspiracy, fourth degree.

Thereafter, defendant, through counsel filed a discovery demand requesting that the People provide them with copies of these communications and conversations.

In their effort to comply, the People have moved this Court, pursuant to CPL 700.50 for an order authorizing members of the Suffolk County Police Department and the Suffolk County District Attorney's Office to make reproductions of the requested recorded materials for the defense and return the original recorded materials to members of the Suffolk County Police Department for safekeeping and preservation. Further, the People request that the Court order that neither the defendant or his attorney reveal the content of the recorded materials to any other person, or make copies for them. The reason is to avoid prejudicing on-going investigations and unnecessary pre-trial publicity that could adversely impact the potential jury pool.

Defense counsel argues the People's application for a non-disclosure order is an attempt to "limit the defendant's right to investigate" and therefore, would deny him a fair trial. He does not say how, or cite any case law in support of his argument.

The issuance, sealing, retention and custody of eavesdropping warrants, supporting documents and the actual recordings themselves is governed by CPL Article 700. A basic premise of CPL Article 700 is close judicial supervision over the use of electronic surveillance as an investigative technique and over the use of any information derived from electronic surveillance (see, People v Sher, 38 NY2d 600, 604). The strict requirements of CPL 700 effectuate the "... purposes of preventing tampering, alterations or editing, aiding in establishing a chain of custody and protecting the confidentiality of the tapes..." (see, People v Gallina, 66 NY2d 52, 59; see also, Preiser, Practice Commentaries, McKinney's Cons. Laws of NY, CPL 700.50, Book 11A, pp. 624-625).

Disclosure of sealed records is permitted only upon a showing of good cause (CPL 700.50). [*3]At bar, the People seek permission to unseal the recordings for the sole purpose of making copies available to defense counsel in response to his discovery demand.

Further, the People's application here comports with the strict guidelines of CPL 700. It is not, as defendant argues, an effort to deny him a fair trial and his constitutional right to prepare a defense and investigate the allegations in the indictment. In fact, the opposite is true. By seeking to limit disclosure, the goals of protecting confidentiality and preventing prejudicial pre-trial publicity are protected. It is ironic that the strict requirements of the statute, e.g., confidentiality, timeliness, sealing, etc. are intended to protect a defendant, but here, this defendant seeks to throw those protections away.

Defendant also asks this Court to recuse itself. He initially made such a motion in early December, 2004. The People submitted their answer and defendant then withdrew the motion. Thereafter on December 23, 2004, he brought an Article 78 proceeding in the Appellate Division, seeking to prohibit this Court from proceeding with the trial in this matter and in two unrelated matters. On March 14, 2005 the Appellate Division denied the petition and dismissed the proceeding.

One of the grounds urged by defendant in support of disqualification is the claim that the Court has demonstrated that its "...impartiality might reasonably be questioned." Defendant states that if the Court does not disqualify itself, he would not consider a non-jury trial. If it does, he would.

To support this claim, defendant cites a portion of a conversation in chambers after arraignment on September 21, 2004, in which the Court, in response to an oral application by the prosecutor for a "non disclosure order" pursuant to CPL 700.50, apparently stated as follows to defense counsel:

"Until you reach this decision (i.e., whether a non-disclosure order was prejudicial to defendant or not), I am directing you as an officer of the Court not to disclose to anyone outside of this case. Obviously, you can discuss it with your client, but if your client discloses it, I have to hold you responsible for it."

How this admonition demonstrates partiality on the part of the Court is unclear. The Court was simply reminding defense counsel to advise his client that disclosure to outsiders was strictly forbidden. That prohibition, clearly, applied to the prosecution as well.

This tactic of seeking disqualification was also raised by defense counsel in a unrelated case which is also presently before this Court, viz., People v Alexander Moore, Indictment No. 1010-04. In denying defendant's application in that case, this Court noted as follows (see memo- decision dated November 30, 2004): [*4]

"The law is quite clear: the decision in a recusal motion is generally a matter of personal conscience (see, People v Smith, 63 NY2d 41, 68). When recusal is sought and is based upon impartiality as distinguished from legal disqualification, as is the case here, the judge is the sole arbiter (see, People v Moreno, 70 NY2d 403, 405; see also, Judiciary Law §14). Here, the Court's conscience is clear: it has been and will continue to be impartial."

The same is true in this case. There is simply no basis for disqualification.

The People's application for an order authorizing limited disclosure within the context of CPL Article 700 is granted. Submit order on notice.

Defendant's cross-motion to disqualify is denied for the reasons stated herein. No further order is necessary.

DATED: HON. MICHAEL F. MULLEN, J.S.C.