People v. Alberti

• Decision Date: 17 June 1985
• Citation: 490 N.Y.S.2d 261,111 A.D.2d 860
• Parties: The PEOPLE, etc., Appellant, v. Victor ALBERTI, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 261

490 N.Y.S.2d 261

111 A.D.2d 860

The PEOPLE, etc., Appellant, v. Victor ALBERTI, Respondent.

Supreme Court, Appellate Division Second Department.

June 17, 1985.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael J. Halberstam and Joel M. Bassoff, Brooklyn, of counsel), for appellant.

Schoer & Sileo, Garden City (Gary Schoer, Garden City, of counsel), for respondent.

Before GIBBONS, J.P., and THOMPSON, WEINSTEIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Kings County, dated May 7, 1982, which granted defendant's motion to suppress physical evidence seized pursuant to a warrant.

Order reversed, on the law and the facts, motion to suppress physical evidence denied, the matter remitted to Criminal Term for further proceedings.

Criminal Term found that Officer Hanna was on a public sidewalk when he knelt down, peered through an aperture beneath defendant's garage door, and observed a license plate registered to a stolen vehicle inside (see, People v. Alberti, 124 Misc.2d 532, 476 N.Y.S.2d 1004). At the time, the officers were engaged in an on-going surveillance of the commercial premises, which was suspected of housing a "chop shop". The officer was located upon a public right of way at the time of his observation, a fact conceded by defendant's counsel at the oral argument of this appeal. Accordingly, he was entitled to observe what was exposed to public view (see, e.g., People v. Sciacca, 64 A.D.2d 677, 407 N.Y.S.2d 504; cf. People v. Farenga, 42 N.Y.2d 1092, 399 N.Y.S.2d 651, 369 N.E.2d 1184; see generally, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; James v. United States, 418 F.2d 1150, 1151, n. 1 (D.C.Cir.)). Furthermore, the record indicates that Officer Hanna, who died prior to the hearing, looked through a three-inch aperture at the bottom of the door, an aperture defendant never blocked out from public view. Consequently, defendant had a minimal expectation of privacy in the commercial premises. Accordingly, it was error for Criminal Term to suppress the evidence later seized pursuant to a warrant.

We further disagree with Criminal Term's conclusion that an inadequate predicate for the issuance of the warrant was presented. Based upon our aforementioned findings, we conclude that a sufficient showing of probable cause was made for the issuance of a warrant to enter and seize the stolen vehicle observed by Officer Hanna (see, e.g., People v. Arnau, 58 N.Y.2d 27, 457 N.Y.S.2d 763, 444 N.E.2d 13; James v. United States, supra, at 1151-1152). The remaining items seized would have been inevitably discovered because they were in open view within the garage (see, e.g., People v. Fitzpatrick, 32 N.Y.2d 499, 346 N.Y.S.2d...