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[T] People v. Ventura5/6/2004
they would no doubt have expressed their strenuous reservations soon after they overcame their initial bewilderment at our explanations of electricity; plumbing; building codes; multiple dwellings and the interpretations of their Fourth Amendment during these past 200 plus years.
Our Villages feel most strongly about Home Rule and control over their zoning and building codes. Small Villages cannot do this job alone. State, County and Town governments must offer assistance to Villages so that Home rule may continue to exist while affordable housing is developed and all other laws are enforced.
The Village urges this Court's approval for a Building Department search conducted at 6 a.m. The justification offered by Mr. Mello is that people are likely to be home at that hour. But, the Court rejects that reasoning. This is not a murder case, a drug case or a case involving a search for contraband, a fugitive or evidence that might be destroyed. Unlike illegal drugs which may be flushed down a toilet there is little urgency for a search where inspectors are looking for extra bathrooms or kitchens. An early morning search cannot be countenanced here. In People v. Markiewicz, 246 A.D.2d 914, 667 N.Y.S.2d 836 (1998), the Third Department found that a 6 a.m. to 9 p.m. warrant passed constitutional muster in a drug case. Justice White wrote the opinion for the Court:
" Where, as here, a defendant attacks the issuance of a search warrant, our task is to determine whether there was a " ' * * * substantial basis for the magistrate's conclusion that probable cause existed'" (People v. Castillo, 80 N.Y.2d 578, 585, 592 N.Y.S.2d 945, 607 N.E.2d 1050, cert. denied 507 U.S. 1033, 113 S.Ct. 1854, 123 L.Ed.2d 477, quoting People v. Johnson, 66 N.Y.2d 398, 405, 497 N.Y.S.2d 618, 488 N.E.2d 439). To establish probable cause, an application must provide the magistrate with information to 'support a reasonable belief that evidence of a crime may be found in a certain place' (People v. McCulloch, 226 A.D.2d 848, 849, 640 N.Y.S.2d 914, lv. denied 88 N.Y.2d 1070, 651 N.Y.S.2d 414, 674 N.E.2d 344).
" On its face, the warrant stated that it was to be executed 'between the hours of 6:00 A.M. and 9:00 P.M., at any time of the day or night'. Pointing to this provision, defendant argues that the physical evidence should have been suppressed as it was seized after 9:00 P.M. We disagree. In accordance with CPL 690.40(2), the application contained a request for an 'all hours' warrant due to the fact that narcotics are often distributed at night and may be disposed of with ease. In light of this, we view the failure to strike the phrase limited the search to daylight hours to be a technical defect that may be overlooked (see, People v. Glen, 30 N.Y.2d 252, 261-262, 331 N.Y.S.2d 656, 282 N.E.2d 614; People v. Eldridge, 173 A.D.2d 975, 976, 569 N.Y.S.2d 482; People v. Crispell, 110 A.D.2d 926, 487 N.Y.S.2d 174)."
The Court most respectfully disagrees with the learned opinion of Suffolk County District Court Judge, Rockwell D. Colaneri in Smithtown v. Serby, 64 Misc.2d 734, 315 N.Y.S.2d 445 (1970). While the decision was published thirty four (34) years ago it does not take account of today's problems as exemplified in this case. The case involves a search warrant issued to a Town Investigator to conduct a search of a home, professional office to determine whether the defendant physician was domiciled there. Judge Colaneri wrote:
"The question to be determined now is whether it was proper to issue a search warrant in order to inspect the premises involved. The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governm
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