People v. Alfinito

• Decision Date: 21 October 1965
• Parties: , 211 N.E.2d 644 The PEOPLE of the State of New York, Appellant-Respondent, v. Peter ALFINITO and Ralph Raymond Zarro, Respondents-Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 243

264 N.Y.S.2d 243

16 N.Y.2d 181, 211 N.E.2d 644

The PEOPLE of the State of New York, Appellant-Respondent, v. Peter ALFINITO and Ralph Raymond Zarro, Respondents-Appellants.

Court of Appeals of New York.

Oct. 21, 1965.

Isidore Dollinger, Dist. Atty. (Walter E. Dillon, New York City, of counsel), for appellant-respondent.

Paul A. Victor, New York City, for respondents-appellants.

Jay Greenfield, New York City, and Daniel J. Sullivan, Mineola, for New York Civil Liberties Union, amicus curiae.

DESMOND, Chief Judge.

In this prosecution for alleged violations of sections 974, 974-a and 975 of the Penal Law, Consol.Laws, c. 40 (policy gambling), the New York City Criminal Court granted defendant's pretrial motion for suppression of evidence alleged by defendant to have been procured through an unlawful search. The People appealed to the Appellate Term, arguing that the Criminal Court should not have permitted defendant to attack the validity of a search, made pursuant to a warrant, by challenging the truthfulness of the factual statements in the affidavit on which the search warrant had been issued. Although this point apparently was not made or suggested at the Criminal Court hearing, the question is one of such large importance that we must deal with it.

The Appellate Term reversed the Criminal Court order and directed a new hearing because the Criminal Court had made no findings of fact. The Appellate Term, citing decisions to which we will refer herein, indicated that in deciding such a motion there must be a statement of the facts on which the court relies for its decision.

Both the People and the defendant appeal to this court. The People argue that one who attacks a seizure made under a search warrant may question the sufficency of the averments on which the warrant issued, or other illegality of the warrant or the search, but cannot be permitted to try out the truth of those supporting allegations. Defendant disputes this. As to the supposed absence of necessary findings, defendant suggests that we hold this appeal and send the case back for such findings.

The People say that probable cause for the issuance of a search warrant is to be determined by the issuing Judge solely from the statement of facts in the affidavit and that after the warrant has been issued those facts can no longer be controverted. In his affidavit in support of the search warrant in this instance, a police officer had recited that he had gotten information from a confidential informant who in the past had proven reliable, that the informer stated he had placed bets with defendant in a certain apartment in the Bronx and had there seen others placing similar bets with the defendant, that on a certain day and at a certain time the officer himself saw eight persons approach the apartment door and on each occasion the defendant answered the door, that six of those persons had short conversations with the defendant and handed him slips of paper and money, that two persons had conversations with the defendant and handed him money and that on two occasions the officer saw defendant write on a pad, that on the next day the officer saw similar transactions of 10 persons with defendant at the same place and that police records showed that defendant had five previous arrests and one conviction for policy violations. At the hearing of the motion the police officer again swore to the same facts. However, the defendant's wife and another witness testified that defendant was not at the apartment at any of the times testified to by the police officer. The motion was granted by the Criminal Court 'on the grounds of a sharp conflict of testimony existing in creating a doubt, which must be resolved in favor of the defendant.' That seems to mean that a search warrant must be quashed on motion whenever there is sworn testimony disputing the basic allegations on which it was granted. Such a holding would clearly be wrong but the question remains as to the correct rule for decision on such a motion that is, is it permissible, and has the person against whom the search warrant was executed a right to try out the issue of truthfulness of the sworn assertions of fact on which the warrant issued?

There is no controlling authority in this State although perhaps People ex rel. Robert Simpson Co. v. Kempner (208 N.Y. 16, 23, 101 N.E. 794, 796, 46 N.R.A.,N.S., 970) can be read as authorizing a later contest of the facts which were before the Magistrate when he signed the warrant. In other jurisdictions there are decisions both ways. Some say that there is no authority for going behind the warrant (Johnson v. State, 163 Tex.Cr.Rep. 101, 289 S.W.2d 249; Armstrong v. State, 195 Miss. 300, 15 So.2d 438; Burrell v. State, 207 Md. 278, 113 A.2d 884; United States v. Brunett, 8 Cir., 53 F.2d 219, 225; ...