§ 700.05 Eavesdropping and video surveillance warrants; definitions of

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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 § 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 § 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 § 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 § 120.05 of the penal law, assault in the first degree as defined in § 120.10 of the penal law, reckless endangerment in the first degree as defined in § 120.25 of the penal law, promoting a suicide attempt as defined in § 120.30 of the penal law, strangulation in the second degree as defined in § 121.12 of the penal law, strangulation in the first degree as defined in § 121.13 of the penal law, criminally negligent homicide as defined in § 125.10 of the penal law, manslaughter in the second degree as defined in § 125.15 of the penal law, manslaughter in the first degree as defined in § 125.20 of the penal law, murder in the second degree as defined in § 125.25 of the penal law, murder in the first degree as defined in § 125.27 of the penal law, rape in the third degree as defined in § 130.25 of the penal law, rape in the second degree as defined in § 130.30 of the penal law, rape in the first degree as defined in § 130.35 of the penal law, criminal sexual act in the third degree as defined in § 130.40 of the penal law, criminal sexual act in the second degree as defined in § 130.45 of the penal law, criminal sexual act in the first degree as defined in § 130.50 of the penal law, sexual abuse in the first degree as defined in § 130.65 of the penal law, unlawful imprisonment in the first degree as defined in § 135.10 of the penal law, kidnapping in the second degree as defined in § 135.20 of the penal law, kidnapping in the first degree as defined in § 135.25 of the penal law, labor trafficking as defined in § 135.35 of the penal law, aggravated labor trafficking as defined in § 135.37 of the penal law, custodial interference in the first degree as defined in § 135.50 of the penal law, coercion in the first degree as defined in § 135.65 of the penal law, criminal trespass in the first degree as defined in § 140.17 of the penal law, burglary in the third degree as defined in § 140.20 of the penal law, burglary in the second degree as defined in § 140.25 of the penal law, burglary in the first degree as defined in § 140.30 of the penal law, criminal mischief in the third degree as defined in § 145.05 of the penal law, criminal mischief in the second degree as defined in § 145.10 of the penal law, criminal mischief in the first degree as defined in § 145.12 of the penal law, criminal tampering in the first degree as defined in § 145.20 of the penal law, arson in the fourth degree as defined in § 150.05 of the penal law, arson in the third degree as defined in § 150.10 of the penal law, arson in the second degree as defined in § 150.15 of the penal law, arson in the first degree as defined in § 150.20 of the penal law, grand larceny in the fourth degree as defined in § 155.30 of the penal law, grand larceny in the third degree as defined in § 155.35 of the penal law, grand larceny in the second degree as defined in § 155.40 of the penal law, grand larceny in the first degree as defined in § 155.42 of the penal law, health care fraud in the fourth degree as defined in § 177.10 of the penal law, health care fraud in the third degree as defined in § 177.15 of the penal law, health care fraud in the second degree as defined in § 177.20 of the penal law, health care fraud in the first degree as defined in § 177.25 of the penal law, robbery in the third degree as defined in § 160.05 of the penal law, robbery in the second degree as defined in § 160.10 of the penal law, robbery in the first degree as defined in § 160.15 of the penal law, unlawful use of secret scientific material as defined in § 165.07 of the penal law, criminal possession of stolen property in the fourth degree as defined in § 165.45 of the penal law, criminal possession of stolen property in the third degree as defined in § 165.50 of the penal law, criminal possession of stolen property in the second degree as defined by § 165.52 of the penal law, criminal possession of stolen property in the first degree as defined by § 165.54 of the penal law, trademark counterfeiting in the second degree as defined in § 165.72 of the penal law, trademark counterfeiting in the first degree as defined in § 165.73 of the penal law, forgery in the second degree as defined in § 170.10 of the penal law, forgery in the first degree as defined in § 170.15 of the penal law, criminal possession of a forged instrument in the second degree as defined in § 170.25 of the penal law, criminal possession of a forged instrument in the first degree as defined in § 170.30 of the penal law, criminal possession of forgery devices as defined in § 170.40 of the penal law, falsifying business records in the first degree as defined in § 175.10 of the penal law, tampering with public records in the first degree as defined in § 175.25 of the penal law, offering a false instrument for filing in the first degree as defined in § 175.35 of the penal law, issuing a false certificate as defined in § 175.40 of the penal law, criminal diversion of prescription medications and prescriptions in the second degree as defined in § 178.20 of the penal law, criminal diversion of prescription medications and prescriptions in the first degree as defined in § 178.25 of the penal law, residential mortgage fraud in the fourth degree as defined in § 187.10 of the penal law, residential mortgage fraud in the third degree as defined in § 187.15 of the penal law, residential mortgage fraud in the second degree as defined in § 187.20 of the penal law, residential mortgage fraud in the first degree as defined in § 187.25 of the penal law, escape in the second degree as defined in § 205.10 of the penal law, escape in the first degree as defined in § 205.15 of the penal law, absconding from temporary release in the first degree as defined in § 205.17 of the penal law, promoting prison contraband in the first degree as defined in § 205.25 of the penal law, hindering prosecution in the second degree as defined in § 205.60 of the penal law, hindering prosecution in the first degree as defined in § 205.65 of the penal law, sex trafficking as defined in § 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 § 265.02 of the penal law, criminal possession of a weapon in the second degree as defined in § 265.03 of the penal law, criminal possession of a weapon in the first degree as defined in § 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 § 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 § 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 § 265.50 of the penal law, or failure to disclose the origin of a recording in the first degree as defined in § 275.40 of the penal law;

* NB Effective until September 1, 2024

* (b) Any of the following felonies: assault in the second degree as defined in § 120.05 of the penal law, assault in the first degree as defined in § 120.10 of the penal law, reckless endangerment in the first degree as defined in § 120.25 of the penal law, promoting a suicide attempt as defined in § 120.30 of the penal law, strangulation in the second degree as defined in § 121.12 of the penal law, strangulation in the first degree as defined in § 121.13 of the penal law, criminally negligent homicide as defined in § 125.10 of the penal law, manslaughter in the second degree as defined in § 125.15 of the penal law, manslaughter in the first degree as defined in § 125.20 of the penal law, murder in the second degree as defined in § 125.25 of the penal law, murder in the first degree as defined in § 125.27 of the penal law, rape in the third degree as defined in § 130.25 of the penal law, rape in the second degree as defined in § 130.30 of the penal law, rape in the first degree as defined in § 130.35 of the penal law, a crime formerly defined in § 130.40 of the penal law, a crime formerly defined in § 130.45 of the penal law, a crime formerly defined in § 130.50 of the penal law, sexual abuse in the first degree as defined in § 130.65 of the penal law, unlawful imprisonment in the first degree as defined in § 135.10 of the penal law, kidnapping in the second degree as defined in § 135.20 of the penal law, kidnapping in the first degree as defined in § 135.25 of the penal law, labor trafficking as defined in § 135.35 of the penal law, aggravated labor trafficking as defined in § 135.37 of the penal law, custodial interference in the first degree as defined in § 135.50 of the penal law, coercion in the first degree as defined in § 135.65 of the penal law, criminal trespass in the first degree as defined in § 140.17 of the penal law, burglary in the third degree as defined in § 140.20 of the penal law, burglary in the second degree as defined in § 140.25 of the penal law, burglary in the first degree as defined in § 140.30 of the penal law, criminal mischief in the third degree as defined in § 145.05 of the penal law, criminal mischief in the second degree as defined in § 145.10 of the penal law, criminal mischief in the first degree as defined in § 145.12 of the penal law, criminal tampering in the first degree as defined in § 145.20 of the penal law, arson in the fourth degree as defined in § 150.05 of the penal law, arson in the third degree as defined in § 150.10 of the penal law, arson in the second degree as defined in § 150.15 of the penal law, arson in the first degree as defined in § 150.20 of the penal law, grand larceny in the fourth degree as defined in § 155.30 of the penal law, grand larceny in the third degree as defined in § 155.35 of the penal law, grand larceny in the second degree as defined in § 155.40 of the penal law, grand larceny in the first degree as defined in § 155.42 of the penal law, health care fraud in the fourth degree as defined in § 177.10 of the penal law, health care fraud in the third degree as defined in § 177.15 of the penal law, health care fraud in the second degree as defined in § 177.20 of the penal law, health care fraud in the first degree as defined in § 177.25 of the penal law, robbery in the third degree as defined in § 160.05 of the penal law, robbery in the second degree as defined in § 160.10 of the penal law, robbery in the first degree as defined in § 160.15 of the penal law, unlawful use of secret scientific material as defined in § 165.07 of the penal law, criminal possession of stolen property in the fourth degree as defined in § 165.45 of the penal law, criminal possession of stolen property in the third degree as defined in § 165.50 of the penal law, criminal possession of stolen property in the second degree as defined by § 165.52 of the penal law, criminal possession of stolen property in the first degree as defined by § 165.54 of the penal law, trademark counterfeiting in the second degree as defined in § 165.72 of the penal law, trademark counterfeiting in the first degree as defined in § 165.73 of the penal law, forgery in the second degree as defined in § 170.10 of the penal law, forgery in the first degree as defined in § 170.15 of the penal law, criminal possession of a forged instrument in the second degree as defined in § 170.25 of the penal law, criminal possession of a forged instrument in the first degree as defined in § 170.30 of the penal law, criminal possession of forgery devices as defined in § 170.40 of the penal law, falsifying business records in the first degree as defined in § 175.10 of the penal law, tampering with public records in the first degree as defined in § 175.25 of the penal law, offering a false instrument for filing in the first degree as defined in § 175.35 of the penal law, issuing a false certificate as defined in § 175.40 of the penal law, criminal diversion of prescription medications and prescriptions in the second degree as defined in § 178.20 of the penal law, criminal diversion of prescription medications and prescriptions in the first degree as defined in § 178.25 of the penal law, residential mortgage fraud in the fourth degree as defined in § 187.10 of the penal law, residential mortgage fraud in the third degree as defined in § 187.15 of the penal law, residential mortgage fraud in the second degree as defined in § 187.20 of the penal law, residential mortgage fraud in the first degree as defined in § 187.25 of the penal law, escape in the second degree as defined in § 205.10 of the penal law, escape in the first degree as defined in § 205.15 of the penal law, absconding from temporary release in the first degree as defined in § 205.17 of the penal law, promoting prison contraband in the first degree as defined in § 205.25 of the penal law, hindering prosecution in the second degree as defined in § 205.60 of the penal law, hindering prosecution in the first degree as defined in § 205.65 of the penal law, sex trafficking as defined in § 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 § 265.02 of the penal law, criminal possession of a weapon in the second degree as defined in § 265.03 of the penal law, criminal possession of a weapon in the first degree as defined in § 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 § 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 § 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 § 265.50 of the penal law, or failure to disclose the origin of a recording in the first degree as defined in § 275.40 of the penal law;

* NB Effective September 1, 2024

(c) Criminal possession of a controlled substance in the seventh degree as defined in § 220.03 of the penal law, criminal possession of a controlled substance in the fifth degree as defined in § 220.06 of the penal law, criminal possession of a controlled substance in the fourth degree as defined in § 220.09 of the penal law, criminal possession of a controlled substance in the third degree as defined in § 220.16 of the penal law, criminal possession of a controlled substance in the second degree as defined in § 220.18 of the penal law, criminal possession of a controlled substance in the first degree as defined in § 220.21 of the penal law, criminal sale of a controlled substance in the fifth degree as defined in § 220.31 of the penal law, criminal sale of a controlled substance in the fourth degree as defined in § 220.34 of the penal law, criminal sale of a controlled substance in the third degree as defined in § 220.39 of the penal law, criminal sale of a controlled substance in the second degree as defined in § 220.41 of the penal law, criminal sale of a controlled substance in the first degree as defined in § 220.43 of the penal law, criminally possessing a hypodermic instrument as defined in § 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 § 220.65 of the penal law, criminal possession of methamphetamine manufacturing material in the second degree as defined in § 220.70 of the penal law, criminal possession of methamphetamine manufacturing material in the first degree as defined in § 220.71 of the penal law, criminal possession of precursors of methamphetamine as defined in § 220.72 of the penal law, unlawful manufacture of methamphetamine in the third degree as defined in § 220.73 of the penal law, unlawful manufacture of methamphetamine in the second degree as defined in § 220.74 of the penal law, unlawful manufacture of methamphetamine in the first degree as defined in § 220.75 of the penal law, unlawful disposal of methamphetamine laboratory material as defined in § 220.76 of the penal law, operating as a major trafficker as defined in § 220.77 of the penal law, promoting gambling in the second degree as defined in § 225.05 of the penal law, promoting gambling in the first degree as defined in § 225.10 of the penal law, possession of gambling records in the second degree as defined in § 225.15 of the penal law, possession of gambling records in the first degree as defined in § 225.20 of the penal law, and possession of a gambling device as defined in § 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 § 230.32 of the penal law, promoting prostitution in the second degree, as defined by subdivision one of § 230.30 of the penal law, promoting prostitution in the third degree, as defined in § 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 § 481 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 § 352-c of the general business law.

(n) Any of the acts designated as felonies in title twenty-seven of Article 71 of the environmental conservation law.

(o) Money laundering in the first degree, as defined in § 470.20 of the penal law, money laundering in the second degree as defined in § 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 § 120.55 of the penal law, and stalking in the first degree as defined in § 120.60 of the penal law.

(q) Soliciting or providing support for an act of terrorism in the second degree as defined in § 490.10 of the penal law, soliciting or providing support for an act of terrorism in the first degree as defined in § 490.15 of the penal law, making a terroristic threat as defined in § 490.20 of the penal law, crime of terrorism as defined in § 490.25 of the penal law, domestic act of terrorism motivated by hate in the second degree as defined in § 490.27 of the penal law, domestic act of terrorism motivated by hate in the first degree as defined in § 490.28 of the penal law, hindering prosecution of terrorism in the second degree as defined in § 490.30 of the penal law, hindering prosecution of terrorism in the first degree as defined in § 490.35 of the penal law, criminal possession of a chemical weapon or biological weapon in the third degree as defined in § 490.37 of the penal law, criminal possession of a chemical weapon or biological weapon in the second degree as defined in § 490.40 of the penal law, criminal possession of a chemical weapon or biological weapon in the first degree as defined in § 490.45 of the penal law, criminal use of a chemical weapon or biological weapon in the third degree as defined in § 490.47 of the penal law, criminal use of a chemical weapon or biological weapon in the second degree as defined in § 490.50 of the penal law, and criminal use of a chemical weapon or biological weapon in the first degree as defined in § 490.55 of the penal law.

(r) Falsely reporting an incident in the second degree as defined in § 240.55 of the penal law, falsely reporting an incident in the first degree as defined in § 240.60 of the penal law, placing a false bomb in the second degree as defined in § 240.61 of the penal law, placing a false bomb in the first degree as defined in § 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 § 240.63 of the penal law.

(s) Identity theft in the second degree, as defined in § 190.79 of the penal law, identity theft in the first degree, as defined in § 190.80 of the penal law, unlawful possession of personal identification information in the second degree, as defined in § 190.82 of the penal law, and unlawful possession of personal identification information in the first degree, as defined in § 190.83 of the penal law.

(t) Menacing a police officer or peace officer as defined in § 120.18 of the penal law; aggravated criminally negligent homicide as defined in § 125.11 of the penal law; aggravated manslaughter in the second degree as defined in § 125.21 of the penal law; aggravated manslaughter in the first degree as defined in § 125.22 of the penal law; aggravated murder as defined in § 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 § 351 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.