 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
[T] People v. Ventura5/6/2004
oath or affirmation, or that is not made part of the affidavit."
The Commentaries under that Guideline then state:
"When such testimony is taken, the judicial officer should examine the affiant under oath, record the testimony, and make it part of the record. Cf. Fed. R. Crim. P. 41(c). See also United States ex rel. Gaugler v. Brierley, 477 F.2d 516 (3d Cir. 1973). Doing this virtually eliminates the possibility that the judicial officer will be called as a witness at the motion to suppress hearing. Otherwise, it is possible that at the motion to suppress hearing the affiant will testify that certain facts were orally communicated to the judicial officer and the judicial officer will be called to testify whether he or she so recollects or has a different recollection."
The American Bar Association Report is convincing and tells us that all courts when considering search warrant applications should do so on the record. In this Court since we are not a "court of record," we must make special arrangements to have outside stenographers brought in to transcribe court proceedings. Again, if the Village is going to be in the search warrant business, it is a cost that it should incur. All courts should adopt the American Bar Association's recommendations and do likewise.
In this case the Court has limited the hearing to the four corners of the affidavits submitted to Associate Justice Pessala on the search warrant application. Neither side has made any request or attempted to subpoena Associate Justice Pessala to testify during these hearings.
This case involves the signing of a search warrant by Associate Justice Elizabeth Pessala of this Court. The warrant authorized the search of 335 Princeton Street within the Incorporated Village of Westbury concerning an alleged Village of Westbury Building Code violation. It involved a claim by the Village that the warrant was authorized due to an alleged illegal occupancy of a one-family residence. The Court notes that the threshold question to be determined in this case is whether this Court has the legal authority to sign a search warrant at all and second, whether it can do so in the case of an alleged Building Code violation.
The Village and Town Justice Courts have been described as those "closest to the people." There are approximately 2300 Village, Town and District Court Judges statewide, three quarters of them are not attorneys. District Courts exist solely in Nassau and Suffolk Counties. See Morris, Bogle, Liotti and Dobiel, Village, Town and District Courts in New York (West Group, 1995-present) at 1:2. This decision may have a collateral effect on the willingness of judges statewide to sign warrants. It is of considerable concern to this Court that non-attorney Judges may sign warrants without fully understanding the legal implications of doing so. Therefore, a law that may actually or ostensibly allow non-attorney Judges to sign search warrants is suspect. We are local criminal courts, but not courts of record. Judiciary Law §2. We are not required to keep stenographic records. Our Court keeps stenographic minutes except in matters of Vehicle and Traffic Law arraignments. UJCA §2021. But what about other local criminal courts, not courts of record with non-attorney judges presiding where warrants may be issued with impugnity and no record is kept of the application process or where the application is made orally, a possibility under our Criminal Procedure Law, and an extremely frightening prospect?
The Village makes the argument that search warrants are a much needed tool for proper code enforcement. They commendably argue that search warrant power is needed to stop the exploita
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 New York DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|