People v. Crandall

• Decision Date: 23 May 1985
• Citation: 108 A.D.2d 413,489 N.Y.S.2d 614
• Parties: The PEOPLE of the State of New York, Respondent, v. Lester Irving CRANDALL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 614

489 N.Y.S.2d 614

108 A.D.2d 413

The PEOPLE of the State of New York, Respondent, v. Lester Irving CRANDALL, Appellant.

Supreme Court, Appellate Division,

Third Department.

May 23, 1985.

Terence L. Kindlon, Albany, for appellant.

Sol Greenberg, Dist. Atty., Albany (John P.M. Wappett, Albany, of counsel), for respondent.

OPINION

Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.

LEVINE, Justice.

On September 9, 1983, a State Police investigator made an oral application via telephone to a County Judge of Albany County, pursuant to CPL 690.35, for a search warrant authorizing the search for illegal drugs of defendant's person, possessions and of his truck, which had been observed parked in the long-term parking lot at the Albany County Airport. The Judge heard statements under oath from the investigator-applicant and from a confidential informant, who was subsequently identified as a police undercover officer. The informant averred that he had purchased quantities of cocaine directly from defendant on some seven recent occasions, that just three days previously defendant had told him that he was about to make a "drug run" to obtain more cocaine, and that the presence of defendant's vehicle at the long-term parking lot of the airport meant that defendant had done so and would be returning with a replenished supply. Following this colloquy, the Judge indicated that he was granting the application. The police then set up a surveillance of defendant's truck at the airport. Later that evening, defendant arrived and was observed entering and then driving off in the truck. The police stopped defendant several miles from the airport. A search of the vehicle unearthed a suitcase containing some $21,000 in United States currency, but no drugs. Defendant was then taken to the State Police barracks in Loudonville and was strip searched, during which a pouch containing cocaine was discovered strapped between his legs. Defendant was indicted for criminal possession of a controlled substance in the third degree and, following trial, convicted as charged.

On this appeal, defendant raises various issues, only one of which requires extended discussion. No reversible error was committed in the trial court's Sandoval ruling permitting the use for impeachment purposes of several convictions obtained against defendant from 1968 to 1974. Either facially or on their underlying facts, the crimes committed were directly probative of defendant's credibility. Hence, they had a "very material relevance, whenever committed" (People v. Sandoval, 34 N.Y.2d 371, 377, 357 N.Y.S.2d 849, 314 N.E.2d 413). The trial court carefully weighed the various competing considerations required by the Sandoval case (id. at 376, 357 N.Y.S.2d 849, 314 N.E.2d 413) and, on that basis, excluded two assault convictions of the same period. We cannot say that there was any abuse here of the discretion accorded a trial court's ruling on a Sandoval motion (People v. Talamo, 55 A.D.2d 506, 509, 391 N.Y.S.2d 474). Likewise, reversal is not required because of the People's tardiness in responding to a pretrial discovery demand for copies of any statement defendant made to the police (CPL 240.80). The proper disclosure was eventually made some two months before trial and the statement itself was never introduced into evidence. There has been no showing whatsoever that the delay caused any prejudice for which any sanctions should be imposed, let alone reversal.

Upon sustaining defendant's objection to an inadmissible statement by one of the police witnesses, it would have been better for the trial court to have instantly followed with a curative instruction. At most, however, the omission was harmless error, as shown by the failure of the defense to have moved or asked for further instructions when it had ample opportunity to do so at subsequent stages of the trial. The remaining assignment of error pertaining to the trial alludes to a claimed delay of more than two hours in the trial court's response to the jury's request during its deliberations to have certain testimony read to it. However, this point is entirely dependent upon facts dehors the record and, therefore, may not be considered on direct appeal (People v. Johnson, 73 A.D.2d 652, 422 N.Y.S.2d 732).

The only troubling issue raised by defendant on this appeal relates to the validity of the search warrant procedure through which the police were authorized to seize the drugs from defendant's person. Statutory support for the issuance of a search warrant based upon an oral, telephone application was first introduced in New York in 1982 by amendments to CPL article 690 (L 1982, ch 679; CPL 690.35 CPL 690.36 ). An applicant is required to identify himself to the Judge and state the purpose of the application (CPL 690.36 ). The Judge must then place under oath the applicant and any other person providing information in support of the application, and must record the oaths and remaining communications (CPL 690.36 ). If, after hearing the applicant's presentation, the Judge is satisfied that an adequate showing has been made, the statute further directs the applicant to "prepare the warrant in accordance with section 690.45 and * * * read it, verbatim, to the judge" (CPL 690.40). The Judge must also have the entire record transcribed, then certify and file it within 24 hours of issuance of the warrant (CPL 690.36 ).

The record of the suppression hearing establishes that the conversation between the applying State Police investigator and the Judge was fully recorded stenographically and transcribed, as was the Judge's discussion with the undercover officer, except for two off-the-record conversations in which the Judge solicited information to verify the informant's identity. There was also testimony attesting to the accuracy of the transcript. Moreover, examination of the sworn statements of the applicant and informant clearly demonstrates that there was sufficient evidence to support a finding of probable cause for the search. However, the record equally establishes that the statutory procedures for issuance of a search warrant upon oral application were not followed in several respects, namely: (1) although the officers were sworn in, the administration of the oaths was not recorded or transcribed; (2) as previously noted, portions of the oral statements given by the officer and the informant were also not recorded or transcribed; (3) the applicant failed to prepare a written warrant and then read it to the Judge, verbatim; and (4) the Judge did not certify to the accuracy of the transcription.

In our view, the failure of the Judge to have had the oaths and the brief conversations regarding the informant's identity recorded and transcribed, and his failure to certify the accuracy of the record, were not fatal to the validity of the search. The Federal courts, in construing a comparable statute (Fed Rules Crim Pro, rule 41 ), have held that similar shortcomings are mere technical defects which may be disregarded in the absence of...