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[T] People v. Ventura5/6/2004
be in violation of §79-2, §83-6, §112-7, §184-4, §248-6 A. and §248-283 of the code of the Village of Westbury and New York State Multiple Dwelling Law §30 and §34. I further believe that the continued illegal occupancy creates a life threatening hazard for adults and children residing at 335 Princeton Street, Westbury, New York. I therefore request that this Court issue the attached Search Warrant for immediate execution.
WILLIAM MELLO"
Frank Gagliano a building inspector also submitted an affidavit as follows:
"FRANK GAGLIANO, being duly sworn, deposes and says:
"(1) I have been employed as a Building Inspector of the Village of Westbury for more than three years.
"(2) On September 23, 2003 I conducted surveillance at 335 Princeton Street, Westbury, New York from 6:00 A.M. to 8:30 A.M. His surveillance indicated the following.
TIMEACTIVITY OBSERVED
0600 Arrive at location.
0620 Female LATE 30's exits from front door and leaves in taxi.
0650 Male approximately 35 years old exits front door with garbage, then leaves in dark pick-up truck.
0717 White Toyota 4-Runner picks up one male-20 years old, from rear of house.
0728 2nd male appears from rear of the house and is picked up by Black sports car.
0730 Male 40 years old exits front door with child and leaves in White Toyota Sequoia.
0750 3rd male mid 20's leaves from rear of house, put out garbage, and leaves on bicycle.
0752 Older female approximately 60 years old opens front door and returns inside.
0800 Older male approximately 60 years old opens front door and returns inside.
0828 Male 40 years old exits front door and leaves in Blue Van.
0829 2 children exit front door and board school bus.
0830 Left scene.
"(3) Based on my observations on September 23, 2003, I believe that 335 Princeton Street, Westbury, New York continues to be illegally occupied as a two family dwelling with a cellar apartment and over occupied.
FRANK GAGLIANO"
Lastly, John Salerno, an employee of the Village's Sanitation and Public Works Department also submitted an affidavit as follows:
"I John Salerno did observe the following at the above premises during weekly garbage pick-up:
1. 8 adult bicycles chained in rear yard
2. Rear basement entrance with light on
3. 4 vehicles in the driveway and 3 additional vehicles parked directly in front of house
4. 2 dog houses
5. Many childrens toys
6. Garbage load 3-4 times the amount for a normal 1-family house this is every pick-up)
John Salerno"
The legal questions to be determined are: "Does this Village Court have the legal authority to issue a search warrant concerning an alleged building or zoning code violation?" If so, is there probable cause for the search and is the warrant overly broad?
The parties have stipulated to a Mapp v. Ohio, 367 U.S. 643 (1961), Franks v. Delaware, 438 U.S. 154 (1978) and a Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2247 (1979) hearing. The first part of that hearing began on January 13, 2004. The first witness for the People was John Salerno. He has worked for the Village for 16 years in the Public Works Department. He testified that he had some discussions with Mr. Mello, our Building Inspector in or about July, 2003. He submitted an affidavit in support of the warrant.
The People called as their first witness John Salerno, a Supervisor in the Department o
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