People v. Lopez

• Citation: 266 AD2d 735,699 N.Y.S.2d 141
• Parties: The PEOPLE of the State of New York, Respondent, v. Andre LOPEZ, Appellant.
• Decision Date: 24 November 1999
• Court: New York Supreme Court — Appellate Division

Page 141

699 N.Y.S.2d 141

The PEOPLE of the State of New York, Respondent, v. Andre LOPEZ, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 24, 1999.

Leonard J. Levenson, New York City, for appellant.

Sol Greenberg, District Attorney (Christopher D. Horn of counsel), Albany, for respondent.

Before: CARDONA, P.J., MIKOLL, MERCURE, YESAWICH JR. and MUGGLIN, JJ.

MUGGLIN, J.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered July 30, 1998, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, criminal use of drug paraphernalia in the second degree (two counts) and criminal possession of marihuana in the third degree.

In September 1997, a confidential informant told a member of the special investigative unit of the Albany Police Department that Sandra Green, residing at 353 Third Street in the City of Albany, along with two males were engaged in drug-trafficking activities. In furtherance of that investigation, the confidential informant, equipped with a body wire, made two separate purchases of controlled substances alleged to be crack cocaine. Based on this information, the police applied for and obtained a search warrant for "353 Third Street, second floor, left apartment, Albany, New York," alleged to be used or occupied by Green and two male individuals.

In the early morning hours of September 22, 1997, the police executed the warrant. After forcibly entering the premises the police officers proceeded up the stairs to the second floor and forcibly entered an apartment. After learning that the first apartment entered was not that occupied by Green, a police officer knocked on a second door which was answered by a female known to the police as Green. The resulting search of the apartment, which was actually situated on the third floor, led to the arrest of defendant and the confiscation of substances alleged to be cocaine and marihuana. Prior to entering the premises, several members of the police department were positioned at the side and rear of the apartment building. Shortly after the police entered the premises, the officer located at the rear of the building observed a package being thrown out a window by an individual wearing a gray T-shirt, the contents of which later proved to be crack cocaine. After being indicted for criminal possession of a controlled substance in the first and third degrees, criminal use of drug paraphernalia in the second degree (two counts) and criminal possession of marihuana in the third degree, defendant was convicted on all counts after trial and now appeals. On this appeal, defendant challenges the sufficiency of the search warrant, the admissibility of expert testimony concerning testing of the alleged controlled substances and the sentence imposed.

Defendant argues that County Court erred in denying his motion to suppress the evidence seized pursuant to the search warrant since the search warrant was improperly issued in that it failed to describe the premises to be searched with sufficient particularity. Specifically, defendant asserts that the search warrant did not adequately describe the location of Green's apartment in a clear and unequivocal manner. Defendant asserts that this contention is bolstered by the fact that the police forcibly entered the wrong apartment initially. Although a search warrant must specifically designate the premises to be searched (see, CPL 690.15[a]; 690.35 ), it has been consistently held that "an imprecise description of the premises to be searched appearing on the face of the warrant will not invalidate a search so long as the description enables the executing officers 'with reasonable effort [to] ascertain and identify the place intended' " (People v. Davenport, 231 A.D.2d 809, 810, 647 N.Y.S.2d 306, lv. denied 89 N.Y.2d 921, 654 N.Y.S.2d 723, 677 N.E.2d 295, quoting Steele v. United States No. 1, 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757; see, People v. Fahrenkopf, 191 A.D.2d 903, 595 N.Y.S.2d 139).

Here, the search warrant application described the premises to be searched as "353 Third Street, second floor, left apartment, Albany, New York. And the person(s) known to use or occupy said premises. A subject by the name of Sandra Green described as a black female * * *." While the actions of the police suggest some confusion as to the correct apartment door, we find that the search warrant sufficiently described the premises to be searched. Once the police recognized that they had not initially entered the apartment of Green, they immediately ascertained and verified its location. Clearly, the warrant described the correct door to the apartment of Green since after making a left-hand...