People v. Ciccarelli

• Decision Date: 30 April 1980
• Citation: 428 N.Y.S.2d 150,104 Misc.2d 287
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Vincent CICCARELLI, Defendant.
• Court: New York City Court

Page 150

428 N.Y.S.2d 150

104 Misc.2d 287

The PEOPLE of the State of New York, Plaintiff, v. Vincent CICCARELLI, Defendant.

Criminal Court of the City of New York, Kings County.

April 30, 1980.

Eugene Gold, Dist. Atty. (Kim D. Ringler, Brooklyn, of counsel), for plaintiff.

Brian C. Rappaport, New York City, for defendant.

LOUIS R. ROSENTHAL, Judge.

Defendant moves to suppress all information and evidence obtained pursuant to the search warrant on the grounds that there was no probable cause to issue said warrant. In addition, defendant alleges a violation of CPL section 690.50(5) in that the warrant was not returned without unnecessary delay. In order for the people to proffer evidence or testimony gathered pursuant to a warrant, the evidence must be physically seized if possible. The motion to suppress testimony of what the executing officer observed pursuant to the search warrant is granted because the items sought and enumerated in the warrant were not seized even though the police officer now alleges the items were on the premises.

The facts of this case are as follows: On December 5, 1979 at about 3:00 P.M., Detective Upton of the Auto Squad made an inspection of the vehicle dismantler records at the property of Hamilton Auto Salvage Corp. at 641 Third Avenue, Brooklyn, New York. Detective Upton, in his affidavit, stated that he observed major component parts of motor vehicles post-1973 that were not listed in defendant's dismantler registry as required by VTL section 415(a)(5). The detective then left 641 Third Avenue without taking further police action. At 4:30 P.M., the detective observed an enclosed yard at 141 19th Street, Brooklyn, New York, a very short distance from 641 Third Avenue. There the detective, as stated in his affidavit, observed other post-1973 auto parts not listed in the defendant's dismantler registry at 641 Third Avenue. The detective also observed a stake truck in the yard which was later discovered to belong to Hamilton Auto Salvage. The detective then observed the defendant's brother drive a flatbed truck bearing the name of Hamilton Auto Salvage, 641 Third Avenue, Brooklyn, New York to the front of the 141 19th Street yard. The gates of the 141 19th Street yard were unlocked and defendant's brother and a helper loaded a post-1973 major component part (1974 Lincoln, white nose) onto the flatbed truck. The truck pulled out of the yard and was driven to 641 Third Avenue, Hamilton Auto Salvage. The defendant was then observed climbing on board the truck at which time he began to fasten the 1974 Lincoln nose to the truck. Surveillance was then discontinued.

Based on Detective Upton's observations as stated in his affidavit a search warrant was issued on December 6, 1979 for the premises at 641 Third Avenue, Brooklyn, New York and the enclosed yard at, adjacent to, and below 141 19th Street, Brooklyn, New York occupied by Hamilton Auto Salvage Corp. The search was authorized in order to seize post-1973 auto parts, the Vehicle Dismantler Registry and Invoices for motor vehicle parts. Detective Upton executed the search warrant. The warrant was returned on January 3, 1980. Detective Upton made no seizure of any items mentioned in the warrant. The return on the warrant stated that no property was seized. Yet the People sought to have Detective Upton testify as to what items he observed that were listed in the complaint and were found on but not seized from the property searched.

There is a genuine issue of whether there was probable cause to search the yard at 141 19th Street. However assuming that probable cause did exist to search both premises 641 Third Avenue and the 141 19th Street yard the remaining pivotal issue is seemingly one of first impression: Can a police officer testify as to what items he has observed when legally on the premises pursuant to a valid search warrant, when that officer did not seize any of these items that he was authorized and ordered to return to the Court?

There are two sections of the Criminal Procedure Law that are pertinent to this issue: CPL section 690.45(7) and CPL section 690.50(5). CPL section 690.45(7) mandates that search warrants contain "A direction that the warrant and any property seized, pursuant thereto be returned and delivered to the court without unnecessary delay." CPL section 690.50(5) requires that "Upon seizing property pursuant to a search warrant, a police officer must without unnecessary delay return to the court the warrant and the property, and must file therewith a written inventory of such property, subscribed and sworn to by such officer."

The defendant maintains, that the more than three week period from the date of the execution of the warrant, December 10, 1979, to the date of the warrant's return, January 3, 1980 constituted "unnecessary delay," and that all information obtained pursuant to the warrant should be suppressed. "Despite the use of the word must in the statute (CPL section 690.50(5)), the prevailing rule in this state would indicate that this paragraph is to be considered merely ministerial when considering the validity of the search warrant as a whole, and errors in carrying out such ministerial duties by the police should no be used to invalidate an otherwise valid warrant." People v. Galleges, 80 Misc.2d 265, 271, 362 N.Y.S.2d 1000, 1006 (Supreme Court, Criminal Term, Kings County; 1975). "A police officer has a duty to comply with the...