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[T] People v. Ventura5/6/2004
public interest against the individual's right to privacy." With all due respect to Judge Mackston, in such balancing tests, the individual's right of privacy must easily weigh in ahead of any other interests.
In the absence of a life-threatening emergency or conditions presenting immediate and irreparable harm, an access order under the Administrative Code of the City of New York to inspect an owner-occupied one-family home to determine whether it is being used as a three-family dwelling, in violation of the code, may issue only on notice to the owner, and in ruling on the application for the access order, the court must weigh the constitutional rights of the owner against the prejudice to the Department of Housing Preservation and Development in the enforcement of its appointed duties. Department of Housing Preservation & Dev. v. Perlongo, (1986, Civ Ct) 134 Misc.2d 722, 512 N.Y.S.2d 753. In a recent symposium on Prosecuting White-Collar Crime: Can the "Public Interest" Justify Non-Consensual Searches of Homes in Bankruptcy Cases?, 11 Wm. & Mary Bill of Rts. J. 267 (2002), the Camara and See cases were both referenced.
The search warrant here limits the search to the taking of photographs and videotaping. This Court interprets that to be authority to take photographs of physical evidence, not of people. In In The Matter of an Administrative Inspection of Property Under the Control of John Kun, 190 Misc.2d 470, 738 N.Y.S.2d 549 (Greene Co. Ct. 2002), Judge Daniel K. Lalor of the Greene County, County Court held:
"Decisions from the nation's highest Court clearly establish that administrative searches fall within the purview of the Fourth Amendment (see, Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 ). Therefore, under ordinary circumstances, a municipality may not make interior inspections without first obtaining either uncoerced consent or a warrant. However, despite the clear need therefor, there is as yet no express statutory provision for administrative warrants under New York law. Legislation to remedy this deficiency by amendment to the General Municipal Law has been introduced, however as of this application the bill remains in committee (N.Y.S. Legislative Bill A01859/S02396, referred to Committee on Codes on 1/16/2001, and again on 1/09/2002).
The nearest available substitute process is the criminal search warrant. In New York, issuance of search warrants is governed by Article 690 of the Criminal Procedure Law. Section 690.05(1) provides, 'Under circumstances prescribed in this article, a local criminal court may, upon application of a police officer, a district attorney or other public servant acting in the course of his official duties, issue a search warrant.' This Court is empowered to sit as a local criminal court for purposes of entertaining search warrant applications (CPL 10.10(3)(g), and the Greenville Town Attorney is a public servant acting within the scope of his official duties in seeking the warrant. The next issue is whether the relief requested may properly be granted, for a search warrant by its terms is ordinarily defined as a court order to search designated premises for the purpose of seizing designated 'property', not to conduct visual inspections (see CPL 690.05(2)).
The Village Administrator, Thomas V. Savino, Esq. wrote to the New York State Conference of Mayors and Municipal Officers (hereinafter "NYSCOM") to request an advisory opinion concerning administrative search warrants. NYSCOM rendered that opinion on January 26, 2004 and it was attached to the People's memoranda here. That opinion is as follows:
"Dear Administrator Savino:
"I am writing in respo
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