Although there are at present no sig cant statutory limitations in the field video electronic surveillance, we are completely without guidance in this ar In Berger v. New York, 388 U.S. 41, S.Ct. 1873, 18 L.Ed.2d 1040 and Katz United States, 389 U.S. 347, 88 S.Ct. 507, 1 L.Ed.2d 576, supra, both of which predate the advent of title III in the area of elec 154 tronic eavesdropping, the Supreme Cour 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. 나의 ᄋ in de [10] 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 commit-la ted, 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 cr 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. and tic wh wa in of crir era PEOPLE v. TEICHER Cite as 395 N.Y.S.2d 587 be made in this chinis As we have stressed, the constitu 1873, 18 L.Ed.2d 1040, supra, and Kata p 2. Telecommunications 494 587 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. 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 7(10) 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. CPL 690.10, subd. 4. See publication Words and Phrases for other judicial constructions and definitions. 6. Searches and Seizures 3.1 The seizure that results from obtaining visual observation of a crime in progress in a private place will be legal if it is derived pursuant to a proper warrant issued by a neutral magistrate. CPL 690.05 et seq. surveillance tist's alleged office was a Scope of the S.C.A.Const. 7. Searches and Seizures 3.4 The Supreme Court has inherent power to issue a videotape order to assist in criminal investigation. 586 395 NEW YORK SUPPLEMENT, 2d SERIES they wish to accept as a debtor and owner of the security, and to reappraise the desirability of the loan originally made from the standpoint of the then value and condition of the security covered and the interest rate obtainable in the current money market. The Kennedy's sale of the mortgaged premises gave Hudson the option to make such decisions and reappraisals, and as a result it has elected to declare the mortgage due and payable. The acceleration clause was one which the parties to the mortgage agreed to in a fair and legal contract, and does not constitute a forfeiture or a penalty (Graf v. Hope Building Corp., 254 N.Y. 1, 171 N.E. 884; Albertina Realty Co. v. Rosbro Realty Corp., 258 N.Y. 472, 180 N.E. 176." (63 Misc.2d 863, 866, 313 N.Y.S.2d 804, 808.) [1] 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., Loughery 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. 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 Plaintiff's supporting evidentiary detail. 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 [1977] 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". [2] 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 prop There are no facts set forth which require such a result in this case. The only allegation in the complaint bearing upon defend-erty to a financially responsible purchaser ant'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 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. mini mization 90 Misc.2d 638 PEOPLE v. TEICHER Cite as 395 N.Y.S.2d 587 The PEOPLE of the State of New York V. Marvin TEICHER, Defendant. Supreme Court, New York County, Part 106. June 2, 1977. 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 a "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 ue. 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. Amend. 4. See publication Words and Phrases for other judicial constructions and definitions. 587 two Since videotaping encompasses 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 7(10) 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. CPL 690.10, subd. 4. See publication Words and Phrases for other judicial constructions and definitions. 6. Searches and Seizures 3.1 The seizure that results from obtaining visual observation of a crime in progress in a private place will be legal if it is derived pursuant to a proper warrant issued by a neutral magistrate. CPL 690.05 et seq. 7. Searches and Seizures 3.4 The Supreme Court has inherent power to issue a videotape order to assist in criminal investigation. 588 395 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 3.7 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 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 |