
    The People of the State of New York, Plaintiff, v Elisha Freedman and Clarence Alhart, Defendants.
    City Court of Rochester,
    July 15, 1976
    
      Frank Gasbarre, pro se and Thomas D. Cook for Frank Gasbarre, complainant. Joseph A. Regan for defendants.
   Charles T. Maloy, J.

Frank Gasbarre has filed an information accusing Clarence Alhart and Elisha Freedman of violating subdivision 1 of section 250.25 of the Penal Law. Section 250.25 (subd 1) reads as follows: "Knowing that he does not have the consent of the sender or receiver, he opens or reads a sealed letter or other sealed private communication”.

The complainant is an employee of the City of Rochester, having been employed for a period of 10 years as an inspector in the Department of Building and Property Conservation. The letters in question have been received through the City of Rochester mailing department and transmitted to the Bureau of Buildings, Room 240, Public Safety Building, Civic Center Plaza, Rochester, New York. These letters were received by the complainant opened, and this, he feels, is a violation of the law. The complainant, at a warrant hearing, admitted that he does get mail in his normal course of duties for the City of Rochester, as an inspector. He also stated that none of the letters opened were marked personal or confidential. He introduced into evidence a letter from his attorney, received after the filing of the information, which had been opened. It should be noted that this letter was not marked personal or confidential.

Mail received by employees of the City of Rochester, be they the City Manager, or anyone else having to do with the business of the City of Rochester, are public letters, and said mail shall be handled in accordance with the rules set forth by the department heads or those in authority. Mail sent to a particular employee marked personal or confidential, should remain personal and confidential, however; both the sender and the receiver who communicate through the mail, using the address of the City of Rochester do so at the risk that said mail will be handled in the normal public method.

Subdivision 1 of section 250.25 is not intended to protect private communications, addressed to municipal employees and sent in care of the municipality. To permit the employees to use the city as a personal mailing address would be an illegal use of the public funds, for it is public funds that pay the employees who sort and deliver the mail of the city.

I find no criminal conduct on the part of the defendants, Clarence Alhart and Elisha Freedman. A warrant will not issue.  