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[T] People v. Ventura5/6/2004
d be made of the proceedings. Evidence seized may be suppressed if the affidavit on which the warrant is based did not indicate the sources of the informant's belief whether on personal knowledge or otherwise. People v. Sutton, 32 N.Y.2d 923, 347 N.Y.S.2d 192, 300 N.E.2d 726 (1973). A trial judge may look beyond a police investigator's affidavit to the sworn in camera testimony of a confidential informant to determine if the search warrant was issued upon probable cause. People v. Brown, 110 Misc.2d 1050, 443 N.Y.S.2d 363 (Sup.Ct., Erie Co., 1981).
There was some reference to complaints being made by adjoining property owners or other neighbors and the People decided to turn over all of their records in connection with the property and essentially provided the defense with open file discovery. See Kyles v. Whitley, 514 U.S. 419 (1995) and U.S. v. John Gil, 297 F.3d 93 (2002). See also, Thomas F. Liotti, The Uneven Playing Field, Part III, Or What's On The Discovery Channel, St. John's Law Review, Vol. 77, No. 1, Winter 2003, pp. 67-74. The People also provided the defense with information about confidential informants or adjoining property owners who had complained about the property in question.
A second day of hearings was had on January 27, 2004 and a third and final day of hearings was held on April 6, 2004. Mr. Gagliano testified that he had made observations of the house on November 27, 2001 and did not make other observations of the premises until September 24, 2003. Mr. Gagliano was asked questions about his understanding of the definition of a "family" as provided for in the Village Code. The Court read into the record the definition from the local law
§248-2 which provides in relevant part, as follows:
FAMILY
"(1) One or more persons living together as a single and stable bona fide housekeeping unit so long as such persons together occupy and either own, lease or rent the whole of a separate building or dwelling unit in a family-like living arrangement as the functional and factual equivalent of a natural family and use all rooms and housekeeping facilities in common, and no more than one domestic or home health care or medical care worker; provided, however, that in any separate building or dwelling unit occupied by a family of four or fewer persons, there may be added no more than one boarder, roomer or lodger, and provided that in any family of three or fewer persons, there may be added no more than two boarders, roomers or lodgers, all as defined in this section.
"(2) Any such number of persons shall not be deemed to constitute a "family" if:
(a) Any one of such persons may not have lawful access to all parts of the separate building or dwelling unit;
(b) Any one or more of such persons lease or rent any separate portion of such separate building or dwelling unit from any other person, except for one or two boarders, roomers or lodgers, as provided in Subsection B(1) above;
(c) Such persons shall occupy the separate building or dwelling unit as a boarding, rooming or lodging house, nursing or convalescent home, dormitory, fraternity or sorority house, hotel , motel or inn or other similar housing facility, except for one or two boarders, roomers or lodgers, as provided in Subsection B(1) above.
"(3) It shall be presumed that a separate building or dwelling unit is occupied by more than one family if any two or more of the following features may be found to exist on the premises by the Superintendent of Buildings or Code Enforcement Officer, unless it is otherwise rebutted by evidence presented to the Superintendent of Buildings or Code Enforcement Officer by the owner o
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