N.Y. Criminal Procedure Law § 700.05: Eavesdropping and video surveillance warrants; definitions of terms

§ 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, strangulation in the second degree as defined in section 121.12 of

the penal law, strangulation in the first degree as defined in section

121.13 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, 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, a crime

formerly defined in section 130.40 of the penal law, a crime formerly

defined in section 130.45 of the penal law, a crime formerly 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, labor trafficking as defined in section 135.35 of the penal law,

aggravated labor trafficking as defined in section 135.37 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, health care fraud in the fourth degree

as defined in section 177.10 of the penal law, health care fraud in the

third degree as defined in section 177.15 of the penal law, health care

fraud in the second degree as defined in section 177.20 of the penal

law, health care fraud in the first degree as defined in section 177.25

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 second degree as defined in section 165.72 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, residential mortgage fraud in the fourth degree as

defined in section 187.10 of the penal law, residential mortgage fraud

in the third degree as defined in section 187.15 of the penal law,

residential mortgage fraud in the second degree as defined in section

187.20 of the penal law, residential mortgage fraud in the first degree

as defined in section 187.25 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, sex trafficking as defined in section 230.34 of the penal

law, sex trafficking of a child as defined in section 230.34-a of the

penal law, criminal possession of a weapon in the third degree as

defined in subdivisions two, three 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

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, criminal manufacture, sale or

transport of an undetectable firearm, rifle or shotgun as defined in

section 265.50 of the penal law, or failure to disclose the origin of a

recording in the first degree as defined in section 275.40 of the penal

law;

(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 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 sale of a

prescription for a controlled substance or a controlled substance by a

practitioner or pharmacist as defined in section 220.65 of the penal

law, criminal possession of methamphetamine manufacturing material in

the second degree as defined in section 220.70 of the penal law,

criminal possession of methamphetamine manufacturing material in the

first degree as defined in section 220.71 of the penal law, criminal

possession of precursors of methamphetamine as defined in section 220.72

of the penal law, unlawful manufacture of methamphetamine in the third

degree as defined in section 220.73 of the penal law, unlawful

manufacture of methamphetamine in the second degree as defined in

section 220.74 of the penal law, unlawful manufacture of methamphetamine

in the first degree as defined in section 220.75 of the penal law,

unlawful disposal of methamphetamine laboratory material as defined in

section 220.76 of the penal law, operating as a major trafficker as

defined in section 220.77 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, bribe receiving for public office and

corrupt use of position or authority, 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, promoting

prostitution in the third degree, as defined in section 230.25 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, domestic act of terrorism

motivated by hate in the second degree as defined in section 490.27 of

the penal law, domestic act of terrorism motivated by hate in the first

degree as defined in section 490.28 of the penal law, hindering

prosecution of terrorism in the second degree as defined in section

490.30 of the penal law, hindering prosecution of terrorism in the first

degree as defined in section 490.35 of the penal law, criminal

possession of a chemical weapon or biological weapon in the third degree

as defined in section 490.37 of the penal law, criminal possession of a

chemical weapon or biological weapon in the second degree as defined in

section 490.40 of the penal law, criminal possession of a chemical

weapon or biological weapon in the first degree as defined in section

490.45 of the penal law, criminal use of a chemical weapon or biological

weapon in the third degree as defined in section 490.47 of the penal

law, criminal use of a chemical weapon or biological weapon in the

second degree as defined in section 490.50 of the penal law, and

criminal use of a chemical weapon or biological weapon in the first

degree as defined in section 490.55 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.

(t) Menacing a police officer or peace officer as defined in section

120.18 of the penal law; aggravated criminally negligent homicide as

defined in section 125.11 of the penal law; aggravated manslaughter in

the second degree as defined in section 125.21 of the penal law;

aggravated manslaughter in the first degree as defined in section 125.22

of the penal law; aggravated murder as defined in section 125.26 of the

penal law.

(u) Any felony defined in article four hundred ninety-six of the penal

law.

(v) Any of the acts designated as felonies in section three hundred

fifty-one of the agriculture and markets 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.