People v. Mirasola

CourtNew York Court of General Sessions
Writing for the CourtIRWIN D. DAVIDSON
Citation35 Misc.2d 886,231 N.Y.S.2d 645
Decision Date12 June 1962
PartiesPEOPLE v. Bernard MIRASOLA and Angelo Mirasola.

Page 645

231 N.Y.S.2d 645
35 Misc.2d 886
PEOPLE

v.
Bernard MIRASOLA and Angelo Mirasola.
Court of General Sessions, New York County.
June 12, 1962.

Page 646

James J. Hanrahan, New York City, for defendants, in support of motion.

Frank S. Hogan, Dist. Atty., of New York County, by Edward M. Davidowitz, New York City, of counsel, in opposition to motion.

IRWIN D. DAVIDSON, Justice.

The defendants in three motions seek three separate and distinct forms of relief. The first motion is a demurrer to the indictment. The second motion is for an order permitting an inspection of the grand jury minutes or, in the alternative, a dismissal of the indictment. And the third motion is for an order suppressing evidence seized allegedly as the result of an illegal search and seizure.

The defendants have been indicted charged with two crimes. One, criminally buying and receiving stolen property as a felony; and two, criminally concealing and withholding stolen and wrongfully acquired property as felony.

The defendants' demurrer to the indictment is disallowed. There has been a complete failure on the part of the defendants to show that the indictment is in any manner deficient or defective. The indictment conforms substantially to the requirements of sections 275, 276, 278 and 279 of the Code of Criminal Procedure.

An inspection of the grand jury minutes shows that the testimony before the grand jury, if uncontradicted or unexplained, [35 Misc.2d 887] would warrant a conviction by a trial jury. Under the circumstances, the defendants' motion to inspect the grand jury minutes or, in the alternative, to dismiss the indictment is denied.

The defendants' third motion for an order to suppress evidence seized allegedly as a result of an illegal search and seizure is supported only by the affidavit of the attorney for the defendants. That affidavit sets forth no facts which put in issue the question of whether the police seized property as a result of an illegal search. The defendants' attorney contents himself with making the unfounded statement, 'Concededly the police had no color of authority to enter the home of Bernard Mirasola who lived in a different county than the one in which he was under interrogation * * *.'

The burden is upon a defendant who claims that property was seized by the police allegedly as the result of an illegal search to initially

Page 647

put that fact in issue. This he can only do upon the defendants' own affidavit (People v....

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9 practice notes
  • Town of Brookfield v. Candlewood Shores Estates, Inc., No. 12702
    • United States
    • Supreme Court of Connecticut
    • August 12, 1986
    ...one court has said, "[a]n affidavit should set forth the factual picture by a person who knows the facts"; People v. Mirasola, 35 Misc.2d 886, 887, 231 N.Y.S.2d 645 (1962); the York affidavit does Moreover, these facts would be "admissible in evidence" despite the defend......
  • People v. Harry
    • United States
    • New York County Court
    • February 17, 1971
    ...77; People v. De Simone, 56 Misc.2d 289, 288 N.Y.S.2d 324; People v. Vasquez, 50 Misc.2d 12, 269 N.Y.S.2d 229; People v. Mirasolo, 35 Misc.2d 886, 231 N.Y.S.2d 645; People v. Cangione, 33 Misc.2d 23, 224 N.Y.S.2d If, upon a motion to suppress, the defendant by his own affidavit, or by the a......
  • People v. Buckman
    • United States
    • New York County Court
    • June 15, 1972
    ...and has been specifically disapproved of by the courts. See Matter of Taylor, 265 App.Div. 858, 37 N.Y.S.2d 675; People v. Mirasola, 35 Misc.2d 886, 231 N.Y.S.2d 645; Cronin v. International Union, E.R. & M.W., 203 Misc. 196, 117 N.Y.S.2d [70 Misc.2d 222] The Affidavits of the defendant......
  • People v. Lucente
    • United States
    • New York Supreme Court Appellate Division
    • June 29, 1972
    ...by the defendant's attorney, was insufficient on its face and no hearing should have been held in the first place (People v. Mirasola, 35 Misc.2d 886, 231 N.Y.S.2d 645; People v. Cangione, 33 Misc.2d 23, 224 N.Y.S.2d Order reversed, and motion denied. --------------- * The warrant was also ......
  • Request a trial to view additional results
9 cases
  • Town of Brookfield v. Candlewood Shores Estates, Inc., No. 12702
    • United States
    • Supreme Court of Connecticut
    • August 12, 1986
    ...one court has said, "[a]n affidavit should set forth the factual picture by a person who knows the facts"; People v. Mirasola, 35 Misc.2d 886, 887, 231 N.Y.S.2d 645 (1962); the York affidavit does Moreover, these facts would be "admissible in evidence" despite the defend......
  • People v. Harry
    • United States
    • New York County Court
    • February 17, 1971
    ...77; People v. De Simone, 56 Misc.2d 289, 288 N.Y.S.2d 324; People v. Vasquez, 50 Misc.2d 12, 269 N.Y.S.2d 229; People v. Mirasolo, 35 Misc.2d 886, 231 N.Y.S.2d 645; People v. Cangione, 33 Misc.2d 23, 224 N.Y.S.2d If, upon a motion to suppress, the defendant by his own affidavit, or by the a......
  • People v. Buckman
    • United States
    • New York County Court
    • June 15, 1972
    ...and has been specifically disapproved of by the courts. See Matter of Taylor, 265 App.Div. 858, 37 N.Y.S.2d 675; People v. Mirasola, 35 Misc.2d 886, 231 N.Y.S.2d 645; Cronin v. International Union, E.R. & M.W., 203 Misc. 196, 117 N.Y.S.2d [70 Misc.2d 222] The Affidavits of the defendant......
  • People v. Lucente
    • United States
    • New York Supreme Court Appellate Division
    • June 29, 1972
    ...by the defendant's attorney, was insufficient on its face and no hearing should have been held in the first place (People v. Mirasola, 35 Misc.2d 886, 231 N.Y.S.2d 645; People v. Cangione, 33 Misc.2d 23, 224 N.Y.S.2d Order reversed, and motion denied. --------------- * The warrant was also ......
  • Request a trial to view additional results

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