People v. Cusumano

• Citation: 484 N.Y.S.2d 909,108 A.D.2d 752
• Parties: The PEOPLE, etc., Respondent, v. Joseph CUSUMANO, Appellant.
• Decision Date: 04 February 1985
• Court: New York Supreme Court — Appellate Division

Page 909

484 N.Y.S.2d 909

108 A.D.2d 752

The PEOPLE, etc., Respondent, v. Joseph CUSUMANO, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 4, 1985.

Richard J. Oddo, Ozone Park, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Shulamit Rosenblum and Seth M. Lieberman, Asst. Dist. Attys., Brooklyn, of counsel), for respondent.

Before LAZER, J.P., and BRACKEN, RUBIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 11, 1983, convicting him of criminal possession of stolen property in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

Defendant's present challenge to the sufficiency of an officer's affidavit made in support of an application for a search warrant of defendant's business premises was not preserved for appellate review since he did not raise such a claim in his pretrial motion papers seeking to suppress evidence seized as a result of the warrantless inspection of the premises, as well as the subsequent search thereof pursuant to a warrant (CPL 470.05, subd. 2; People v. Jones, 81 A.D.2d 22, 440 N.Y.S.2d 248). Moreover, since defendant did not controvert any of the facts alleged in the warrant application, Criminal Term did not err in denying defendant's request for a suppression hearing (People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614, cert. den. sub nom. Baker v. New York, 409 U.S. 849, 93 S.Ct. 58, 34 L.Ed.2d 91).

In any event, defendant's present challenge to the sufficiency of the warrant application is without merit for several reasons. First, it is significant that defendant's conviction of criminal possession of stolen property in the second degree related to his possession of the stolen front component of a 1975 Lincoln Continental. That particular auto part had been discovered during the warrantless inspection of the premises, not during the subsequent search pursuant to the warrant. Accordingly the present attack on the warrant application is academic. Second, a review of the officer's affidavit clearly indicates that it alleged sufficient facts to support a finding of probable cause to believe that there was stolen property on defendant's business premises. The officer stated that as a result of his routine warrantless inspection of the premises, he discovered several auto parts which contained serial numbers from cars reported stolen. Thus, the officer's first-hand observations coupled with the reports of stolen vehicles supported a finding of probable cause to justify a search of the premises.

Parenthetically, we find that the officer's warrantless routine inspection of defendant's business premises was proper and did not violate defendant's Fourth Amendment right to be free from unreasonable searches and seizures. It is axiomatic that constitutional prohibitions against unreasonable searches and seizures apply to administrative inspections of private commercial property (Marshall v. Barlows, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305; Sokolov v. Village of Freeport, 52 N.Y.2d 341, 438 N.Y.S.2d 257, 420 N.E.2d 55). However, one engaged in an industry subject to a long-standing complex and pervasive pattern of close supervision and inspection, possesses a substantially diminished expectation of privacy and "this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections" (Donovan v. Dewey, 452 U.S. 594, 599, 101 S.Ct. 2534, 2538, 69 L.Ed.2d 262; see also, United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87; Colonnade Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60). Paragraph (a) of subdivision 5 of section 415-a of the Vehicle and Traffic Law authorizes the police to conduct a routine warrantless inspection of the books and records as well as the premises of a vehicle dismantling business. The constitutionality of these statutory provisions has been upheld in a number of cases (see, e.g.,People v. Tinneny, 99 Misc.2d 962, 417 N.Y.S.2d 840; People v. Camme, 112 Misc.2d 792, 447 N.Y.S.2d 621).

In the case at bar, the officer, upon arriving at defendant's yard, observed several signs indicating that the business was engaged in the dismantling of vehicles and dealing in used auto parts. Moreover, there were several dismantled vehicles on the premises. In view of these observations it is clear that the officer acted reasonably in assuming that defendant was a vehicle dismantler and justifiably sought to review the business...