People v. Malinsky

• Decision Date: 04 September 1962
• Citation: 232 N.Y.S.2d 843,36 Misc.2d 204
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Morris MALINSKY, David Lustigman, Robert Felt, Defendants.
• Court: New York Supreme Court

Page 843

232 N.Y.S.2d 843

36 Misc.2d 204

The PEOPLE of the State of New York, Plaintiff, v. Morris MALINSKY, David Lustigman, Robert Felt, Defendants.

Supreme Court, Criminal Term, Queens County, Part IV.

Sept. 4, 1962.

Arthur W. Lonschein, Kew Gardens, for defendants.

Frank D. O'Connor, Dist. Atty., Queens County (Harvey Ehrlich, Asst. Dist. Atty.), of counsel opposed.

J. IRWIN SHAPIRO, Justice.

Defendants have moved (1) for an order suppressing evidence on the ground that it was obtained by an illegal search and seizure, at night, under the ostensible authority of a day-time search warrant (2) or, in the alternative, for an order vacating the warrant for want of support by affidavit establishing probable cause for belief in the existence of lawful grounds for its issuance (Code Crim.Proc. §§ 792, 793). The facts, as gleaned from the motion papers and the minutes of a preliminary hearing in the Magistrates Court, appear to be as follows:

On the afternoon of January 10, 1962 a task-force of New York City police officers was so divided that at least one officer kept under surveillance a storage building at 156-08 107th Avenue, Queens County, N.Y., while others proceeded to the Magistrates Court where a search-warrant was sought and obtained, authorizing them to enter the premises, in the daytime, to make immediate search for certain allegedly stolen drug supplies, sundries and toilet articles. Meanwhile, the one officer had observed defendant Malinsky enter the suspected building. The officers who obtained the warrant arrived in the vicinity of the building at about 4:40 P.M. but made no immediate effort to enter the place. Instead, they joined in the surveillance with the result that at about 4:45 P.M. Malinsky was observed leaving the place and at about 5:15 P.M. defendant Lustigman was seen to enter it. Almost immediately thereafter a Hertz rental truck, with Malinsky as the driver and sole occupant, was backed into the building, through a door opened by defendant Felt. At about 5:45 P.M. two of the officers proceeded to the side of the building and, through its windows, observed the defendants, in and about the truck, 'handling the Beauty Culture supplies * * * passing them into the truck'. At 6:00 P.M. they entered and executed the warrant, thereby recovering property later identified as merchandise owned by First National Chain Stores and stolen along with the trailer upon which they had been loaded. Somehow, as a further result of their efforts that day, the police also recovered the trailer. Thereafter defendants were indicted for felonious violations of section 1308 of the Penal Law for their possession of the drug-supplies (Counts 1 and 2) and the trailer (Counts 3 and 4). The instant motion is made in advance of their trial under that indictment. Concededly, the warrant was executed at 6:00 P.M., after sunset ¹ which, by long established definition of New York law, was in the night-time, i. e., 'the time from sunset to sunrise' (General Construction Law, § 51). That Blackstone considered this an ancient notion and that other jurisdictions have accepted his preference for 'the better opinion * * * that if there be daylight or crepusculum enough to discern a man's face' it is daytime, (4 Black.Com., (Gavit Ed.) 844; Words and Phrases, volume 28-A at pp. 263-267) are of greater interest than persuasion since the New York Legislature has put the substantive and procedural criminal law within the operative scope of the definitions supplied by the General Construction Law (supra) (People v. Prisco et al., Sur., 232 N.Y.S.2d 837).

By its express terms, the latter statute is 'applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter' (sec. 110, emphasis supplied). It so provided when originally enacted as the Statutory Construction Law (L.1892, ch. 677, sec. 1) and specific instances of its application to the law of crimes and criminal procedure are furnished by the contemporaneous repeal of definitive statutes in both of those fields, viz., sections 955, 956 and 957 of the Code of Criminal Procedure and sections 261, 500 and subdivisions 9 to 15 of section 718 of the Penal Code (L.1892, ch. 677, supra, sec. 35 and schedule annexed, at pp. 1492-1493). The repeal of Penal Code sections 261 and 500 is noteworthy since the former defined 'day' in a chapter dealing with Sabbath-violations and kindred offenses and the latter defined 'night-time' in the burglary-context. Thus, aggravation of the crimes of burglary and larceny, by reason of their commission in the 'night-time' (Id., sec. 530, subds. 1 and 2), was left to depend upon proof conforming to the definition given in the Statutory Construction Law. Arson was either overlooked or the statute suffered to remain because of its combination, in a single sentence, of the definitions of 'night-time' and 'dwelling-house' (Id., sec. 492). There being no indication of a contrary legislative intent, the definition of night-time found in the General Construction Law should be held applicable to the procedural law concerning search-warrants. Thus, the execution of the warrant in the instant case must be viewed as having occurred in the night-time, as a matter of law (People v. Prisco et al., supra). It does not follow, however, that the search and seizure were illegal as a matter of course.

If the police had probable cause to arrest the defendants for the commission of a felony and made a lawful entry for that purpose, the search and seizure, without a warrant, may be upheld if they were an incident to the lawful arrest. The probable cause cannot, naturally, be based on evidence obtained as a result of the search, but must have existed in the first instance. The fact is determinable only by a hearing in advance of the trial and '(h)earsay will be admissible on the issue of probable cause' (People v. Loria, 10 N.Y.2d 368, 373, 374, 223 N.Y.S.2d 462, 468, 179 N.E.2d 478, 482), but if it involves intelligence conveyed by an informer its use by the People will, necessarily, entail abandonment of any privilege of official secrecy that would, otherwise, forbid its exploration by the defendants. 'One may not 'fill a gap in his own evidence by recourse to what he suppresses'' (People v. Ramistella, 306 N.Y. 379, 384, 118 N.E.2d 566, 569, quoting, in part, United States v. Coplon, 2 Cir....