People v. Misuraco
| Decision Date | 20 May 1965 |
| Citation | 16 N.Y.2d 542,208 N.E.2d 461,260 N.Y.S.2d 655 |
| Parties | , 208 N.E.2d 461 PEOPLE, etc., Appellant, v. Thomas MISURACO et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, First Department, 23 A.D.2d 722, 258 N.Y.S.2d 330.
Defendants were indicted by a grand jury for alleged violations of laws prohibiting policy.
A police officer of the New York City Police Department presented an affidavit for a search warrant authorizing the officer to execute it in the nighttime. The substance of the affidavit was that the officer had information from a confidential informant, whose reliability had been proven that two of the defendants were engaged in a race horse policy operation in an apartment at certain address, and that on November 6, 1963 between 4:15 and 4:30 the officer in company of the informant saw unknown persons knock on door which was opened by one of the defendants, and handed that defendant an envelope and money, and that at 6:25 p. m. officer saw one of the defendants insert a key in door of apartment and enter, and that at 7:10 p. m. two of the defendants left apartment and drove away, and that on December 7, 1963 officer had apartment under observation from 4:15 p. m. to 7:15 p. m. and saw the same persons deliver envelopes and money to defendant who had previously received envelopes and money, and that one of the defendants arrived at apartment at about 5:10 p. m., and that two of defendants left apartment at 7:15, and that one of defendants had record for arrests for policy violations, and that apartment was listed to one who had also been previously arrested for violation of gambling laws. The time of sunset on November 8, 1963, the date when the search warrant was issued, was 4:51 p. m.
The Supreme Court, Special and Trial Term, Charles Marks, J., entered an order granting a motion to vacate the search warrant and to suppress any evidence obtained as a result of the search and seizure and any statements obtained as result of the seizure, and the People of the State of New York appealed.
The Appellate Division affirmed the order of the Special and Trial Term.
The People of the State of New York appealed to the Court of Appeals, contending that there was probable cause for believing that warrant could not be issued in the daytime and that therefore it was proper to authorize nighttime search.
Isidore Dollinger, New York City (Walter E. Dillon, New York City, of counsel), for appellant.
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