People v. Hoey

Decision Date23 October 1967
Citation283 N.Y.S.2d 1004,54 Misc.2d 1083
PartiesPEOPLE of the State of N.Y. v. Robert Edward HOEY.
CourtNew York District Court

James D. Saver, Commack, for defendant.

George Aspland, Dist. Atty., Riverhead, Thomas J. Klei, Northport, of counsel, for People of State of New York.

MEMORANDUM

ALEXANDER W. KRAMER, Judge.

Motion by defendant for an order vacating and setting aside the search warrant heretofore issued herein, and for the suppression of the evidence seized pursuant thereto.

The affidavit submitted in support of the issuance of the warrant, sworn to by Detective Miller--a member of the Narcotics Squad of the Suffolk County Police, contained the following:

'I have information, based upon my own observations and the observations of other police officers, that crimes of Dangerous Drug Offenses Penal Law Article 200 is being conducted by Robert Hoey from his 1957 Buick, two-door sedan, no registration plates thereon, and located at 202 North Clinton Ave., Bay Shore. Subject was observed sitting in said vehicle with known users of dangerous drugs, one known to this Department as Robert King and acting in a manner leading your deponent to believe marihuana was being smoked.

A sample of Cannabis sativa, aka marihuana was obtained from a confidential informant who has been reliable in the past and an asset in the solving of several narcotic cases handled by this Squad. The sample was obtained from the 1957 Buick parked in the driveway at 202 North Clinton Ave., Bay Shore.'

These allegations--per se and standing without contravention--constitute probable cause as a matter of law, sufficient to substantiate the issuance of the warrant.

Is a hearing necessary?

We think not.

Section 807 of the Code of Criminal Procedure provides that: 'if grounds on which the warrant was issued be controverted, the magistrate must proceed to take testimony in relation thereto.' A close scrutiny of moving papers fails to reveal any area of pertinent contravention.

It has been held that: 'In order to require a hearing, the defendant must show some facts which put in issue and controvert the grounds which prompted the court in issuing the search warrant. No such facts are set forth in the moving papers. * * * An examination of the detective's affidavit which furnished the basis for issuing the search warrant amply justified the court in determining that there was probable cause for the issuance of the search warrant. Since no facts...

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2 cases
  • People v. Gilligan
    • United States
    • New York Supreme Court
    • January 27, 1975
    ...are set forth in the moving papers.' (People v. Rooks, 35 Misc.2d 598, 600, 229 N.Y.S.2d 923, 926; quoted in People v. Hoey, 54 Misc.2d 1083, 1084, 283 N.Y.S.2d 1004, 1005.) Here, the only affidavits in support of the motion to suppress are made by the attorneys for the defendants. No facts......
  • People v. Tobiass
    • United States
    • New York County Court
    • April 6, 1972
    ...of the search warrant, no hearing is required. (People v. Solimine, 18 N.Y.2d 477, 276 N.Y.S.2d 882, 223 N.E.2d 341; People v. Hoey, 54 Misc.2d 1083, 283 N.Y.S.2d 1004). Accordingly, the defendants' motion for the suppression of evidence, and in the alternative, for a hearing thereon, is ...

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