People v. Acevedo
| Decision Date | 11 July 1991 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Luis M. ACEVEDO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Hollie Bethmann, Albany, for appellant.
James B. Canfield, District Attorney (Richard J. McNally, Jr., of counsel), Troy, for respondent.
Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and HARVEY, JJ.
Appeal from a judgment of the County Court of Rensselaer County (Ceresia Jr., J.), rendered April 26, 1989, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the third degree.
On February 19, 1986 Robert Dodge was arrested and taken to police headquarters for questioning. While at police headquarters, he was asked if he knew anyone selling cocaine from whom he could make a buy. He advised the police that defendant, Dodge's neighbor, sold cocaine and that Dodge could make a buy from him. Dodge was then taken to a parking lot near defendant's apartment and given $40 for the purchase of one half of a gram of cocaine. Dodge left the police, went into defendant's apartment and returned with a packet of white powder which he claimed to have purchased from defendant. On February 24, 1986 Dodge executed an affidavit swearing to these facts. On April 25, 1986 the police applied for a search warrant of defendant's apartment supported by Dodge's affidavit. The warrant was issued on April 25, 1986 and executed seven days later. As a result of the search of defendant's apartment, the police seized a handgun and a quantity of cocaine. Following indictment, defendant's motion to suppress the physical evidence seized as the result of the search was denied. Defendant was ultimately convicted of possessing the handgun and the cocaine. On appeal, defendant contends, inter alia, that the search warrant was improperly issued because the information upon which it was based was stale. We agree.
The statutory scheme in New York does not impose any time limitation on the revelation of information which leads to the issuance of a search warrant (see, CPL 690.30). It has been observed, however, that " 'it is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time' " (People v. Padilla, 132 A.D.2d 578, 517 N.Y.S.2d 299, quoting Sgro v. United States, 287 U.S. 206, 210-211, 53 S.Ct. 138, 140, 77 L.Ed. 260 [emphasis supplied]. Where there is a time lapse between disclosure of the information sought to establish probable cause and the issuance of a warrant, substantial reliance will be placed on the nature of the offense in order to determine whether the requisite...
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