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[T] People v. Ventura5/6/2004
f Public Works. In July, 2003 the Building Inspector inquired of him as to whether there was an unusual amount of garbage coming out of 335 Princeton Street within the Incorporated Village of Westbury. Mr. Salerno testified that he noticed a large amount of garbage in front of the home. Westbury has back door delivery, meaning that sanitation workers will ordinarily go to the back door of a home to pick up garbage. Mr. Salerno went to the back of the home and saw more garbage which he found to be "excessive." He also observed a basement light on, several bicycles, toys in the backyard and a couple of dog houses. It is undisputed that 335 Princeton Street is in a legal one family zone and the home was zoned for single family occupancy. Mr. Salerno signed an affidavit in support of the warrant application. The witness testified that the garbage generated from the home was 3 to 4 times the normal amount at "every pick up." The cross-examination revealed that he did not make that observation. Hence his sworn statement was incorrect or perhaps inartfully drafted. He testified that he observed the excessive amount of garbage 4 or 5 times. He did not leave a notice of "excessive amounts of garbage" at the home although he said that that was his custom and practice at other residences where he found that condition.
The witness, Mr. Salerno, testified that he had not seen the 8 adult bicycles on any other dates aside from the one date that he said that he saw them. He also testified that there were four vehicles parked in the driveway and three parked in front of the house. He had no idea who owned these vehicles. He filed an affidavit indicating what he observed. He stated that he also observed many toys in the backyard and that in his opinion as a parent, "the more toys you have, the more children you have." The Court stated that Mr. Salerno was testifying as a fact witness and not an expert. No objection was raised by either counsel.
Mr. Salerno indicated that he would check the amount of garbage coming from various dwellings and he noticed in the month of July that the amount of garbage coming from the home in question was 3 or 4 times the amount for a normal family dwelling. Understandably the witness was unable to determine, based upon his analysis of the garbage, how many people lived at the location or how many there were in the house next door.
The next witness to testify was Frank Gagliano, employed by the Building Department for the Village of Westbury. He had conducted a surveillance of 335 Princeton Street and was offered by the prosecution as both a fact and expert witness. He was proffered as an expert on illegal occupancies. The defense did not voice any objection to Mr. Gagliano being qualified in that regard.
In colloquy with the Court, counsel noted that there was no record of the proceedings before Associate Justice Pessala. Therefore, the Court ruled that the testimony during the hearings in this case would be limited to the "four corners" of the search warrant application and the affidavits contained therein. As to any other matters that may have been before Associate Justice Pessala, but not memorialized in the form of a transcript or in some other way, those matters were disallowed and witnesses were not permitted to testify about them. People v. Lalli, 43 NY.2d 729, 401 N.Y.S.2d 489, 372 N.E.2d 330 (1977). C.P.L. § 690.40(1) provides that the Court: "may examine, under oath, any person whom it believes may possess pertinent information. Any such examination must be either recorded or summarized on the record by the court." As stated hereinafter, the better procedure is for the neutral court to conduct an examination under oath and that a stenographic recor
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