The statutory requirement of CPL
700.15 (subd 4) that normal investigative procedures be first exhausted before electronic surveillance is allowed, must be reviewed in a practical and commonsense fashion. The government need not prove that normal investigative techniques will fail, but only that such techniques reasonably appear unlikely to succeed. The record supports a finding that ordinary police surveillance would have been impractical, if not impossible. Such finding provides the required factual predicate to support the wiretap. (See United States v Armocida, 515 F2d 29, 38; United States v Baynes, 400 F Supp 285, 299.) This is especially true where, as here, physical surveillance might jeopardize the investigation. (See United States v Carubia, 377 F Supp 1099, 1108.)
The majority believes that the taping of every call over the *85defendant’s telephone violates New York State (CPL 700.30, subd 7) and Federal (US Code, tit 18, § 2518, subd [5]) statutory requirements to minimize the interception of conversations falling outside the ambit of an authorized warrant. Unlike the wiretap in United States v Principie (531 F2d 1132) which violated the order restricting the wiretap to certain times of the day, the wiretap order herein applied to the entire day. It is clear that the police officers did not listen to the innocent calls picked up over the wiretap. While taping of all calls was automatically triggered, there is no evidence to support a conclusion that the police listened to the taped innocent calls. Accordingly, it must be the act of taping which leads the majority to determine that minimization of the wiretap was not accomplished, indeed not attempted. I disagree.
While taping of innocent calls is not to be condoned, it was not intended “that evidence directly within the ambit of a lawful order should be suppressed because the officers, while awaiting the incriminating evidence, also gathered extraneous conversations,” (United States v Cox, 462 F2d 1293, 1301, cert den, 417 US 918.) Such a position is supported by cases in which items covered by a search warrant are not suppressed even though items not covered by the warrant are also seized. (See United States v Sisca, 361 F Supp 735, 746, affd on other grounds 503 F2d 1337, cert den, 419 US 1008.)
In United States v Quintana (508 F2d 867, 875) where the government recorded all incoming calls, the court noted the difficulty in determining which calls are innocent where a foreign langauge is used. Furthermore, in conversations of less than two minutes, taping of nonpertinent calls is permitted because the brevity prevents an adequate determination of the nature of the conversation. (See United States v Capra, 501 F2d 267; People v Carter, 81 Misc 2d 345.) In the case ar bar, the telephone conversations were in Spanish. Only two of the nine-man police investigatory team were fluent in Spanish. Many of the innocent calls were for very brief periods of time.
Under all the circumstances in this case, the minimization provisions of State and Federal statutes were not violated. Defendant has not satisfied his burden of persuasion that the evidence should be suppressed. (See People v Di Stefano, 38 NY2d 640.) I would affirm.
Capozzoli, J., concurs with Murphy, J.; Birns, J., concurs *86in an opinion in which Capozzoli, J., concurs; Markewich, J. P., and Nunez, J., dissent in an opinion by Nunez, J.
Judgment, Supreme Court, Bronx County, rendered on June 5, 1975, and orders of said court entered on December 27, 1973 and March 12, 1975, respectively reversed, on the law, the motions to suppress evidence granted, and the indictment dismissed.