People v. Gray

• Decision Date: 13 January 1970
• Citation: 306 N.Y.S.2d 487,61 Misc.2d 769
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Sarah GRAY, Defendant.
• Court: New York County Court

Page 487

306 N.Y.S.2d 487

61 Misc.2d 769

The PEOPLE of the State of New York, Plaintiff, v. Sarah GRAY, Defendant.

Monroe County Court.

Jan. 13, 1970.

[61 Misc.2d 770] John C. Little, Jr., Monroe County Dist. Atty. (George W. Conaty, Jr., Asst. Dist. Atty., of counsel), for the People.

Thomas G. Presutti, Rochester (William B. Power, Rochester, of counsel), for defendant.

DECISION

DAVID O. BOEHM, Judge.

On October 21, 1968 a Justice of the Supreme Court of Monroe County issued a search warrant against one Melvin DuVall Gray, the husband of the defendant, authorizing the search of his 1967 Ford sedan and his apartment in the City of Rochester. The warrant authorized the search for narcotics and dangerous drugs both in the daytime or nighttime.

The search was conducted early in the morning of October 24, 1968 and said Melvin DuVall Gray was not present in the apartment at the time. The defendant and her two children were there. The search disclosed drugs, a Beretta pistol and cartridges and some other items, following which the defendant was arrested. on November 6, 1968 the Grand Jury of the County of Monroe handed down Indictment No. 566 charging the defendant with the criminal possession of a dangerous drug in the fourth degree, in violation of Section 220.05 of the Penal Law of the State of New York; with the crime of possession of weapons and dangerous instruments and appliances, in violation of Section 265.05, Subd. 2 of the Penal Law of the State of New York and further, with the crime of the sale and possession of hypodermic syringes and hypodermic needles and possession of certain other instrument, in violation of Section 3395, Subd. 3 of the Public Health Law of the State of New York.

Defendant now brings this motion to contravene the warrant and to suppress the evidence found in the apartment, claiming that the search and seizure as to her was illegal, that she was unlawfully arrested, and further moved to dismiss the indictment. In her affidavit, defendant states that at no time did she either expressly, or by implication, grant permission or give her consent to make the search, nor was there probable cause on the part of the police officers upon which to base a reasonable belief that she had or was about to commit a crime. She denies ownership, control and possession of the items seized as well as knowledge of their being in the premises.

The People resist the motion on two grounds: (1) that the motion to contravene the warrant may be determined only by the magistrate who issued it and; (2) that the well-established procedure of reserving the determination of the motion to suppress for the trial judge, should be adhered to. Further, the People assert that the defendant has no standing to either contravene or suppress because the search warrant was directed against another person, i.e., her husband, Melvin DuVall Gray.

At argument, the court disposed of the question of standing. Searched, the defendant obviously had standing to bring these motions. As an occupant of the apartment affected, she was a 'person claiming to be aggrieved by an unlawful search and seizure' (Sec. 813-c) against whom the People intend to use the evidence so seized (People v. Smith, 35 Misc.2d 533, 230 N.Y.S.2d 894).

The contravening of a search warrant comes under Title II of Part VI of the Code of Criminal Procedure, particularly Sections 807--810, whereas a motion to suppress or return property unlawfully seized is governed by Section 813-c et seq. of Title II-B.

Although Section 813-e of the Code provides that after indictment a motion to suppress must be brought in the court having trial jurisdiction of the indictment, there are no similar limitations with respect to a motion to controvert. Section 807 simply states: 'If the grounds on which the warrant was issued be controverted, the judge, justice or magistrate must take testimony in relation thereto.' The Code fails to particularize the procedure for such a hearing or the forum in which it is to be conducted.

In 1963, one court took the position that Section 807 did not authorize separate motion to contravene, that it was 'encompassed within the ambit of Sec. 813-c' and therefore any proceedings to contravene and to suppress must be brought at the same time and in the same court. (People v. Brown, 40 Misc.2d 35, 37 242 N.Y.S.2d 555, 558).

However, two years later the Court of Appeals disagreed. In People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644, the right of a person against whom a search warrant had been executed to contest the factual basis upon which it had been issued was resolved as follows:

'(F)irst, * * * section 813-c of the Code of Criminal Procedure is to be construed so as to permit an inquiry as to whether the affidavit's statements were perjurious; second, that the burden of proof is on the person attacking the warrant (see United States v. Goodwin, (D.C.) 1 F.2d 36; United States v. Napela, (D.C.) 28 F.2d 898), and third, that any fair doubt arising from the testimony at the suppressal hearing as to whether the affidavit's allegations were perjurious should be resolved in favor of the warrant, since those allegations have already been examined by a judicial officer in issuing a warrant.' Id. at 186, 264 N.Y.S.2d at 246, 211 N.E.2d at 646.

One month later, the Court of Appeals clarified the procedure further by holding that Sec. 807 permitted the magistrate who had issued the search warrant, in this case a Justice of the Peace, to vacate it. However, he did not have similar authority to suppress the evidence seized under Secs. 813 et seq. because, an indictment having been filed, this could be done only by the court where the defendants were to be tried. (People v. Gatti, 16 N.Y.2d 251, 265 N.Y.S.2d 641, 212 N.E.2d 882).

Subsequently, in 1967, when the question came up as to whether a court of general jurisdiction could be bound by a Sec. 807 order of an inferior court which had vacated a search warrant, the Second Department interpreted People v. Gatti as holding that it could. The court rejected the argument that Sec. 813-c and the sections following it indicated a legislative intent that only the trial court or the Supreme Court had jurisdiction to determine the issues relevant to a motion to suppress, including those issues arising upon a Sec. 807 motion. (People v. Ortiz, 27 A.D.2d 392, 280 N.Y.S.2d 480).

One year later, Justice Farrell, in a footnote to his opinion in People v. Asaro, 57 Misc.2d 373, 374, 291 N.Y.S.2d 613, 616, pointed out in part: 'The grounds upon which a warrant was issued may be 'controverted,' as a matter of right, in the court which issued it, upon return of the warrant and delivery of an inventory. (Code Crim.Proc. secs. 802, 805--809).'

It is abundantly clear, therefore, that the appropriate sections in Title II authorize an independent contest to determine the truth or falsity of the allegations underlying the issuance of a search warrant; that such a proceeding may be brought separate and apart from a motion to suppress under Title II-B (Secs. 813-c et seq.); that the hearing may be held before and determined by the magistrate issuing the warrant, regardless of whether or not an indictment has been filed in another court.

What is not clear is whether the Code permits an option for the warrant to be controverted Either before the issuing magistrate or the trial court, should they be different, or whether it must be controverted Only before the issuing magistrate. The People, in this proceeding, argue the latter. A careful reading of the Code convinces the Court that their position is the correct one.

The language of Sec. 807, and the sections before and after it, in Title II, makes it clear that the 'judge, justice or magistrate' alluded to throughout is the judge, justice or magistrate who originally issued the warrant. (Secs. 791, 794, 796, 799, 801, 802, 804--810). Reference is made in all of them in precisely the same way to 'the judge, justice or magistrate'. (Emphasis supplied) who--signs the warrant (Sec. 791); examines the person seeking the warrant and witnesses (Sec. 794); is satisfied of the existence of sufficient grounds (Sec. 796); may dispose with the necessity of giving notice of authority and purpose (Sec. 799); may authorize execution of the warrant in the day or night (Sec. 801); to whom a search warrant shall be returned (Sec. 802); to whom the property seized must be delivered (Sec. 804); to whom a written inventory of the property must be delivered and before whom it must be sworn to (Sec. 805); who must deliver, if required, a copy of the inventory (Sec. 806); who must take testimony if the grounds on which the warrant was issued be controverted (Sec. 807); who, upon stated grounds, must cause the property to be restored to the person from whom it was taken (Sec. 809); and who may transfer the warrant to the court having trial jurisdiction (Sec. 810).

There is also significance in the fact that Secs. 807--809 and Secs. 813-c to 813-e were amended or added by the Legislature in the same year, 1962. Sections 807--809 became effective July 1, 1962 (L.1962, c. 542). Sections 813-c to 813-e became effective April 29, 1962 (L.1962, c. 954). Whereas Sec. 813-e required generally that the motion to suppress be heard and decided by the trial court, either before or during trial, it did not make a similar mandate with respect to the motion to controvert, nor did it enlarge the scope of Sec. 807, except to add the words 'judge, justice or' in the text. Its failure to do so indicates, at least as the Code now stands, a general legislative reluctance to impose upon one court, except in an appellate capacity, the burden of passing upon the bona fides or exercise of discretion of another court. DP It seems that this question has not as yet been directly passed upon. It was disposed of in People v. Ricken, 49 Misc.2d 677, 268 N.Y.S.2d 677, but only in an elliptical...