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439 NEW YORK SUPPLEMENT, 2d SERIES
proscription on electronic eavesdropping. Indeed, there may be situations such as the present one where the intrusion resulting from such surveillance is warranted because of the State's high interest in gathering evidence of criminality and its inability to achieve this goal through less intrusive
Although there are at present no significant statutory limitations in the field of video electronic surveillance, we are not completely without guidance in this area. In Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, supra, both of which predated the advent of title III in the area of elec154 tronic eavesdropping, the Supreme Court set forth the minimum constitutional standards governing the use of aural electronic surveillance. Because of the substantial similarities between this form of surveillance and the video electronic surveillance which took place in this case, we believe that the standards announced in Berger and Katz are applicable with equal force to the present situation. And, contrary to defendant's assertions, we believe that these constitutional standards were here satisfied.
 The first requirement for a warrant authorizing video electronic surveillance, as with any warrant, is that there be a showing of probable cause. In situations involving this form of search, there must be probable cause to believe that a particularly described person is committing, has committed, or is about to commit a crime, probable cause to believe that the place where the activity is to be intercepted is being used or is about to be used in connection with the commission of the crime by that described person, and also probable cause to believe that a particular activity related to that crime will be observed through the use of video electronic surveillance (see Berger v. New York, supra; cf. CPL 700.15, subds. 2, 3, 5). Such probable cause was clearly established by the affidavit offered by the District Attorney in support of his application for a warrant, which fully set forth the facts leading up to the Beineix incident.
52 N.Y.2d 653
The Constitution also requires particularization in the warrant. Specifically, the Fourth Amendment commands that the warrant must particularly describe "the place to be searched, and the ・・・ things to be seized". In the area of video electronic surveillance, as in the area of electronic eavesdropping, the particularization requirement includes specification of the crime under investigation, specification of the type of activity sought to be captured by the camera and also specification of the person expected to be seen performing the activity. The obvious purpose of this requirement is to limit the discretion of the officers in executing the search. Here, all of these requirements were satisfied. Although the warrant did not specify the particular room in which the camera was to be placed, the affidavit, which was incorporat ed in the warrant. did specify that the camera was to be placed in defendant's dental office and was to focus upon the dental chair in which consenting patients would be seated. While defendant apparently had two treatment rooms, we nevertheless conclude that the limitation upon the place to be searched was sufficiently specific to obviate the danger of a general rummaging for evidence or a search of impermissibly broad scope (see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564).
Minimization is also necessary for a war rant authorizing video electronic surveil lance. In Berger, the court expressed concern that conversations of persons coming into an area covered by an eavesdropping device might be unnecessarily and indiscriminately seized without regard to their connection with the crime under investigation. This concern is equally compelling when visual surveillance is employed. The warrant in this case explicitly provided, however, that the surveillance be conducted in such a way as "to minimize the recording of activities not related to the [specified] crimes". Moreover, the incorporated affidavit expressly limited the view of the camera to the dental chair in defendant's office and specified that the device would be
Finally, before a warrant authorizing unconsented video electronic surveillance may issue, it must be established that there are no less intrusive means for obtaining the needed evidence. Since electronic surveillance of any kind is necessarily surreptitious and constitutes an extensive invasion of the individual's privacy, it may only be permitted where normal investigative procedures had been tried and had failed or are demonstrably unlikely to succeed. Defendant contends that such a showing could not be made in this case, but the facts do not bear out his contention. Before applying for the warrant the police had questioned defendant about one of the complaints of sexual abuse, had equipped two of the female complainants with hidden recorders and transmitters in an attempt to elicit admissions from defendant, and had tapped 56 the telephone of a complainant who had received repeated calls from defendant. Furthermore, the use of a police decoy without the protection of visual surveillance would not have produced the needed evidence in this case, since the decoy, of necessity, would have been heavily sedated and might not have been able to relate what transpired. Under these circumstances it cannot be said, despite defendant's protestations to the contrary, that the police failed to make a sufficient showing of necessity before obtaining the warrant.
mands unswerving adherence to each of the limitations placed upon the use of this device. Moreover, because the use of this investigative technique poses a threat to the privacy of citizens, legislative scrutiny of the field and the enactment of specific guidelines would appear to be in order.
We have considered defendant's remaining contentions and conclude that they are without merit.
As we have stressed, the constitutional requirements outlined for eavesdropping in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, supra, and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, supra are equally applicable to the area of video electronic surveillance. While we have discussed several of these requirements in the instant case, our opinion should not be construed as an inventory of each of the necessary elements for such a warrant. The degree of intrusiveness inherent in video electronic surveillance de
Accordingly, the order of the Appellate Division, 73 A.D.2d 136, 425 N.Y.S.2d 315 should be affirmed.
COOKE, C. J., and JASEN, JONES, WACHTLER, FUCHSBERG and MEYER, JJ., concur.
KEY NUMBER SYSTEM
422 N.E.2d 515
52 N.Y.2d 657
The PEOPLE of the State of New York, Respondent,
John DITTA, Appellant.
Court of Appeals of New York.
May 12, 1981.
Defendant was convicted before the Supreme Court, Queens County, Eugene Sharpe, J., of sexual abuse in the first degree, unlawful imprisonment in the second degree, criminal possession of a weapon in the fourth degree, endangering the welfare of a child, and menacing, and he appealed. The Supreme Court, Appellate Division, 77 A.D.2d 604, 429 N.Y.S.2d 979, affirmed. Permission to appeal was granted. The Court of Appeals, Cooke, C. J., held that one may be convicted of sexual abuse in the first degree where he compels another per
they wish to accept as a debtor and own-
395 NEW YORK SUPPLEMENT, 2d SERIES
 Clearly, the circumstances in a given case might be such as to restrict or restrain the mortgagee's right to accelerate under a due-on-sale provision such as that found in this case. Since the issue of mortgage foreclosure falls within the Court's equity jurisdiction, the court sitting in equity may refuse to enforce the clause when acceleration of the due date would effect an unconscionable or unfair result. See, e.g., Lough ery v. Catalano, 117 Misc. 393, 191 N.Y.S. 436; Scheible v. Leinen, 67 Misc.2d 457, 324 N.Y.S.2d 197; Clark v. Lachenmeier (1970, Fla.App.), 237 So.2d 583; Gibralter Finance Corp. v. Rouse (1933), 145 Or. 89, 25 P.2d 559; Mutual Federal S. & L. Assn. v. Wisc. Wire Works (1973), 58 Wis.2d 99, 205 N.W.2d 762, 69 A.L.R.3rd 702; Mutual Federal S. & L. Assn. v. American Med. Services, Inc. (1974), 66 Wis.2d 210, 223 N.W.2d 921.
There are no facts set forth which require such a result in this case. The only allegation in the complaint bearing upon defendant's reasons or motives for refusing to consent to the sale is to the effect that defendant's Pennsylvania agent had a favored customer who wished to purchase the property at a price lower than that offered by plaintiff's purchaser. This allegation naturally carries with it the implication
that defendant was not dealing in good faith and resorted to the due-on-sale clause so as to unconscionably and inequitably interfere with plaintiff's right of free alienation. However, plaintiff's allegations in this regard are conclusory and his papers on the motion fail to come forward with any supporting evidentiary detail. Plaintiff's assertion that defendant's Pennsylvania agent gave assurances that defendant would approve the sale if made to the favored customer is of no particular significance as it appears that similar assurances were made with respect to the proposed sale to plaintiff's preferred purchaser. In any event, it is far from clear whether the Pennsylvania concern was acting herein as defendant's agent, as such, with authority to modify or terminate defendant's mortgage agreements with plaintiff or rather as a mere means of communication between the parties. No proof has been submitted that the Pennsylvania entity was authorized in writing to act on defendant's behalf regarding a waiver of defendant's right to accelerate in case of sale (General Obligations Law, § 5-1111).
Although the "due-on" device is frequently employed, the appellate courts in our state have not as yet considered its legal effect. Perhaps, as suggested by Professor Leon Wein (Due On Sale in New York, 49 N.Y. State Bar Journal 203  at p. 242: the legislature might devise a set of standards to restructure commercial morality as it is associated with the extension of mortgage credit".
 Accordingly, the motion for summary judgment is granted to the extent of directing judgment in favor of the defendant declaring: (1) that the clause in question is not void and unenforceable according to its terms; (2) that defendant's refusal to consent to the sale of the mortgaged property to a financially responsible purchaser does not constitute, in and of itself, an unconscionable or inequitable exercise of its option to accelerate the balance due pursuant to the due-on-sale clause, which option is accordingly entitled to judicial enforcement. The first and fourth causes of action are dismissed.
Dentist who was charged with sexual abuse of patients filed a motion to controvert the warrant to secretly place a camera in his dental offices to videotape the events of patients' visits, and to suppress the film obtained from use at the trial. The Supreme Court, Robert M. Haft, J., held that: (1) the installation of video surveillance equipment and monitoring of the dentist's activities constituted "search and seizure" within scope of the Fourth Amendment; (2) a visual observation may fall within the scope of "property" subject to seizure if it constitutes evidence or tends to demonstrate that an offense was committed; (3) a seizure will be legal if it is derived pursuant to a proper warrant issued by a neutral magistrate; (4) the New York statutes authorize issuance of a warrant to videotape evidence and, in any event, the Supreme Court, in exercise of its inherent powers had authority to issue such a warrant; (5) the issuing court had ample reason to be satisfied with the personal credibility of the named informants and reliability of their information so that it had probable cause for issuing the warrant, and (5) the application and resulting order stated with sufficient particularity the place where videotape camera was to be installed, the area and conduct which were to be observed, and how long such observations were to contin
Defendant's motion denied.
1. Searches and Seizures 7(1)
The installation of video surveillance equipment and monitoring dentist's alleged sexual abuse of patients in his office was a "search and seizure" within scope of the Fourth Amendment. U.S.C.A.Const.
See publication Words and Phrases for other judicial constructions and definitions.
2. Telecommunications →494
Title III of the Omnibus Crime Control Act of 1968 and its progeny, the state wiretapping statutes, did not encompass videotaping or any means of electronic visual surveillance. 18 U.S.C.A. §§ 2510-2520; CPL 690.05 et seq., 700.05 et seq.
3. Searches and Seizures
Warrants for videotaping must comply with the guidelines promulgated by the Supreme Court of the United States, since videotaping captures conversations by means of electronic surveillance; compliance would be accomplished if statutory requirements of New York eavesdropping statute were met. CPL 700.05 et seq.
4. Searches and Seizures 3.1
Since videotaping encompasses two components, visual surveillance and aural surveillance, the statute which deals exclusively with aural communication cannot alone serve as predicate for issuing a court order to videotape, and hence search warrant statute must be examined to determine if the seizure of visual images is within the ambit of its search warrant provisions. CPL 690.05, subd. 2, 690.10, subd. 4, 700.05 et seq.
5. Searches and Seizures
395 NEW YORK SUPPLEMENT, 2d SERIES
8. Criminal Law 207(3)
Searches and Seizures 3.4
The New York Supreme Court's jurisdiction and power are coextensive with authority exercised in 1776 by the Kings Bench and Court of Chancery in England,
as well as the Supreme Court of the colony of New York, which powers include the right to assist in investigation of criminal activity by issuing search and arrest warrants. Judiciary Law § 140-b.
9. Searches and Seizures 3.4
CPL Articles 690 and 700, read together, authorize the issuance of a warrant to videotape evidence in assisting criminal investigations and, in any event, the Supreme Court, in exercise of its inherent power, had authority to issue such a warrant so long as it conformed to the Fourth Amendment requirements of probable cause, particularity, and limitation of scope. CPL 690.05 et seq., 700.05 et seq.; U.S.C.A.Const. Amend. 4.
10. Searches and Seizures 3.6(2)
Where application for warrant to secretly place a camera in dentist's offices to videotape alleged sexual abuses of patients consisted of affidavit from detective, the county district attorney and assistant district attorney based on information supplied by patients whose accounts were somewhat corroborated, the issuing court had ample reason to be satisfied with both the personal credibility of the named informants and the reliability of their information so that warrant was based on probable cause. CPL 690.05 et seq., 700.05 et seq.; U.S.C.A.Const. Amend. 4.
11. Searches and Seizures
A search warrant must state with particularity the persons or places authorized to be searched and the things to be seized so that an executing officer can reasonably identify them; to protect one's right of privacy from arbitrary governmental intrusions, nothing should be left to discretion of the searcher in executing the warrant, but hypertechnical accuracy and completeness of description need not be attained; rather, the warrant must be viewed from the
standpoint of common sense. U.S.C.A. Const. Amend. 4.
12. Searches and Seizures
The descriptions in search warrant and the accompanying affidavits should be suf
ficiently definite to enable the searcher to identify the persons, places, or things that the neutral magistrate has previously deter mined should be searched or seized. U.S.C. A.Const. Amend. 4.
13. Searches and Seizures
Where warrant to secretly place a camera in dental offices provided that camera should remain in stationary position and to point only towards dental chair in which consenting females would be seated and that equipment would be turned on only when consenting females had appointments in order to visually capture dentist's activities which were expected to be similar to that which had reportedly occurred in the past with three other patients, the instructions for officers conducting the search appeared to be sufficiently particularized so that warrant could not be struck down on grounds of lack of particularity. CPL 690.05 et seq., 700.05 et seq.; U.S.C.A.Const Amend. 4.
14. Searches and Seizures
3.7 Technical errors in a portion of description of premises to be searched will not invalidate a warrant if the premises can be identified with reasonable effort and there is no reasonable probability that a search may be made of premises other than those intended to be searched under the warrant. U.S.C.A.Const. Amend. 4.
15. Criminal Law
Dentist prosecuted, for sexual abuse of patients, was not entitled to suppression of film obtained from use of videotape on ground that the videotape camera installed pursuant to warrant was not placed in the first examining room on the left, as stated in affidavit, where order required visual surveillance equipment to be installed at a certain address on the first floor, where defendant had his offices, where he engaged in practice of dentistry, and where