People v. Coburn

• Decision Date: 20 February 1976
• Citation: 85 Misc.2d 673,380 N.Y.S.2d 944
• Parties: In the Matter of the PEOPLE of the State of New York, Plaintiff, v. Timothy COBURN, Defendant.
• Court: New York County Court

Page 944

380 N.Y.S.2d 944

85 Misc.2d 673

In the Matter of the PEOPLE of the State of New York, Plaintiff, v. Timothy COBURN, Defendant.

Rensselaer County Court.

Feb. 20, 1976.

Richard P. Walsh, Jr., Asst. Dist. Atty., Schenectady, for the People of the State of New York, plaintiff.

J. Raymond Fisher, Albany, Atty. for Timothy Coburn, defendant.

ALLAN DIXON, Judge.

DECISION

On August 23, 1973, various items were seized pursuant to a search warrant, and the defendant Timothy Coburn was thereafter arrested for allegedly violating Sections 220.15, 220.45, 265.05(2) (now 265.02(4)), and 265.05(8) (now 265.02(3)) of the Penal Law. Defendant moves to suppress the evidence seized upon execution of the search warrant. This issue is whether the lack of a jurat on an application by a police officer can be cured by subsequent affidavits so as to substantially comply with CPL 690.35.

The search warrant application states that the affiant, one Officer Peter Marks, had responded to a telephone call that a fight was in progress in the third floor apartment at 127 Fourth Street, Troy, New York, and that someone was in need of assistance. The application states that the apartment door was open, and that upon beaming his flashlight inside Officer Marks observed a table which had a quantity of marijuana on top of it, as well as a bent teaspoon containing a while powder and a tablespoon containing a white powder alongside the marijuana on the table. The search warrant application also stated that Officer Marks smelled the odor of burning marijuana in the hallway outside the door. With this information, Officer Marks applied for a search warrant that was later issued by Supreme Court Justice John T. Casey. However, the search warrant application was merely signed by Officer Marks. No jurat appears on the face of the application.

CPL 690.35(1) provides that 'An application for a search warrant must be in writing and must be made, subscribed and Sworn to by a public servant specified in subdivision one of section 690.05.' (Emphasis added.) Subsequent sworn affidavits, one executed by Officer Marks and another executed by Justice Casey, attempt to cure the search warrant application's lack of a jurat by showing that Officer Marks orally swore to the truth of the application's statements before Justice Casey. However, Justice Casey's affidavit, dated December 2, 1974, states 'That due to the length of time that has elapsed, I cannot state what the particulars were of the events which occurred on that particular evening. However; it is my Custom on search warrants to have the affiant swear to the truth of the facts contained in his or her statement, to do this orally in front of me, and then to sign the affidavit in front of me.' (Emphasis added.) Officer Marks' sworn affidavit maintains that this actually occurred on August 23, 1973 when he applied for the search warrant.

In a civil case, an application for review and correction of a tax assessment was required to be 'in writing under oath.' The application was in writing, and signed, but the jurat was inadvertently left blank. The...