 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
[T] People v. Ventura5/6/2004
hat: "a search warrant application should not be read in a hypertechnical manner and should be considered in the clear light of everyday experience and accorded all reasonable inference. People v. Kane, 175 A.D.2d 881, 573 N.Y.S.2d 729 (2d Dept, 1991). While this is an argument for upholding the search, our common sense also tells us that exigencies for a search of a residence regarding probable cause to believe that building code violations are allegedly occurring have not been expressed in the warrant application. Moreover, in the absence of a showing that there is probable cause to believe that a crime is occurring, no such exigencies claiming to warrant such a search could exist. The time requirements for the execution of warrants is a limiting provision geared to protect the privacy interests of the occupants. C.P.L. § 690.30 states that a search warrant may only be executed between the hours of 6:00 A.M. and 9 P.M. The better practice in a situation such as this is to asterisk the 6 A.M. to 9 P.M. provision and state that that Court is ordering the search providing it occurs at a reasonable time and on reasonable notice, between the hours of 9 A.M. and 7 P.M. C.P.L. § 690.50 provides that the police officer executing on the warrant "give or make reasonable effort to give notice of his authority and purpose to an occupant thereof before entry and show him the warrant or a copy thereof upon request." These elements of a proper search have not been demonstrated to the satisfaction of this Court. The prosecutor's reference to People v. DiPolito, 61 Misc.2d 65 at 72, 304 N.Y.S.2d 868 (1969) is unavailing since it deals with a search warrant in the City of Rochester concerning alleged violations of the Penal Law relative to gambling. A search warrant was executed following an arrest at 9:15 P.M. The warrant was limited to a search during "daytime." The Court concluded that for purposes of executing a search warrant "daytime" does not end at sunset. Again, the facts are very different here. There were no crimes alleged and no arrest. The evidence of illegal multiple occupancies such as photos of an illegal kitchen or bathroom can be taken just as easily at 11 A.M. as they can be at 6 A.M. The Village might have taken photos of the individuals from outside the house or even asked to speak with occupants early in the morning as they exited.
The ruling in this case should not be viewed by the Village as precluding their making an application for a search warrant in the future. In doing so, hopefully they will consider some of the suggestions herein and look to a search warrant only as an option of last resort.
While this Court finds that the Village Court has no jurisdiction over misdemeanors or over search warrant applications where it is alleged that a crime such as a misdemeanor has been committed, it does find that in the absence of statutory authority to the contrary that it does have statutory rights under State and local law for the issuance of search warrants alleging violations of the local law or building code within the Incorporated Village of Westbury. The Court should use that authority very reluctantly and only as a last resort. However, in light of State laws referenced herein which took substantial powers away from our Village Courts and State and Federal constitutional provisions which may be in conflict with that authority, the Court urges the State Legislature to clarify its intentions on this point. In this instance the Court finds that it has the power by State statute and local law, albeit not in the State and Federal Constitution, to issue a search warrant for a building code violation. But, in this case the Court finds that the warrant was constitutionally defective since it was ov
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.
|
|