People v. Bennett
| Citation | 438 N.Y.S.2d 389,80 A.D.2d 68 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Craig A. BENNETT, Appellant. |
| Decision Date | 09 April 1981 |
| Court | New York Supreme Court Appellate Division |
J. Raymond Fisher, Albany, for appellant.
Sol Greenberg, Dist. Atty., Albany (George H. Barber, Albany, of counsel), for respondent.
Before KANE, J. P., and MAIN, MIKOLL, YESAWICH and WEISS, JJ.
KANE, Justice Presiding.
Upon the execution of a warrant directing the search of an apartment occupied by defendant, police officers discovered and seized a quantity of controlled substances. They included marijuana contained in a metal box under defendant's immediate dominion, and an envelope of cocaine found in the pocketbook of a 15-year-old female who, along with five others, was also present in the apartment when the police entered. In a subsequent written confession, defendant assumed complete responsibility for this contraband, stating that " * * * they did not know anything about the pot, coke or pills that I had in the house * * * " and that " * * * all the drugs and drug related items in the house were mine." Following a trial, the charge involving marijuana was withdrawn from jury consideration and a guilty verdict was returned on the remaining count accusing defendant of possessing the narcotic drug cocaine with intent to sell it (Penal Law, § 220.16, subd. 1). On this appeal, defendant urges reversal based on an alleged defect in the search warrant and the improper admission of an oral statement. We reject both contentions and affirm the judgment.
During a pre-trial suppression hearing, it was established that the search warrant and the application supporting it (an affidavit submitted by a police officer) were both dated February 5, 1979. In addition to other matters, the application referred to the purchase of "white pills" from defendant by a confidential informant on January 26, 1979. The officer testified on cross-examination that he prepared the affidavit on the day a laboratory analysis of the pills was received, but that document was shown to bear the date of February 9, 1979. Notwithstanding this apparent discrepancy, it was entirely proper for the trial court to conclude that the application and warrant were duly executed. The affidavit made no mention of an analysis and the results of such a test were not essential to a finding of probable cause. While the officer may have been mistaken in one particular, or the report itself may have been incorrectly dated, the trial court was free to credit his otherwise unequivocal account that the completed application was presented and sworn to before the issuing magistrate.
More difficult to resolve is defendant's assertion that the prosecution failed to adequately comply with the notice requirement of CPL 710.30 (subd. 1), thereby rendering inadmissible a certain oral statement received in evidence at the trial over his objection (CPL 710.30, subd. 3). After being notified that the prosecution intended to offer both a written and an oral statement upon trial, defendant made an omnibus motion in which he sought, among other items, discovery of any note, report or memorandum containing a summary of any statement he allegedly made. In response, the prosecution consented to provide him with a copy of the aforementioned confession and specified that the "sum and substance" of his oral statement was contained in that writing. Following a Huntley hearing, the trial court found that all statements made by defendant were voluntary and denied his motion to suppress them. The propriety of that ruling is not challenged. At trial, the confession was received in evidence without further protest, but when the police officer who reduced it to writing was asked by the prosecutor whether he had a discussion with defendant about the ownership of the pocketbook in which the cocaine was discovered, objection was immediately voiced to the...
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