People v. Mongno

• Decision Date: 13 October 1971
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Debra MONGNO and Glen Mongno, Defendants.
• Court: New York Supreme Court

Page 62

325 N.Y.S.2d 62

67 Misc.2d 815

The PEOPLE of the State of New York, Plaintiff, v. Debra MONGNO and Glen Mongno, Defendants.

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

Oct. 13, 1971.

Thomas J. Mackell, Dist. Atty., Queens County, Kew Gardens, James E. Robinson, Asst. Dist. Atty., for plaintiff.

Marvyn M. Kornberg, Forest Hills, for defendants.

MEMORANDUM

MICHAEL A. CASTALDI, Justice.

Is a search warrant constitutionally deficient by reason of a misdescription in the name of the street on which the premises searched are located? Broadly stated, that is the question presented on these motions by defendants for 'an order controverting the search warrant herein and suppressing the evidence obtained thereunder'. Apart from the misdescription of the street name, there is no question that the premises searched are in fact the premises occupied by defendants.

Although separately indicted, a single hearing on defendants' motions was held and the testimony taken is equally applicable to each motion. The motions are therefore consolidated for the purpose of this decision.

In the affidavit of Detective Edward Wright, sworn to March 26, 1971, submitted in support of his application for a search warrant, the premises sought to be searched were designated as '132--32 Kew Gardens Road, basement apt. and second floor apt. of a three family house, Queens County, New York'. The warrant that was thereupon issued authorized a search of the same-described premises occupied by the defendants herein. Detective Wright testified that prior to making the application, he visited the subject premises which he described as a three-story house having red brick design asphalt siding with white trim. When he visited the premises he noticed a street sign on the nearest intersecting corner upon which there were the names 'Kew Gardens Road' and 'Hillside Avenue'. It appeared to Detective Wright that the subject premises were physically on Kew Gardens Road, south of Hillside Avenue. Accordingly, the officer testified that he recorded the address '132--32 Kew Gardens Road' in his notes at the time he inspected the premises. The same address was recited in his affidavit and in the search warrant.

Four photographs of the premises designated as '132--32 Kew Gardens Road' were identified by Detective Wright as the premises he visited prior to obtaining the search warrant. (Peo.Exhs. 3, 4, 5, 6.)

Defendant Debra Mongno testified that she and her codefendant husband, Glen Mongno, were present when the police came to their house and searched the premises pursuant to a search warrant. She testified further that on the day of their arrest she and her husband resided at '132--32 Hillside Avenue', which she stated was the correct address of the premises searched, and not '132--32 Kew Gardens Road', as appeared in the search warrant. She acknowledged, however, that the premises shown in People's Exhibits 3, 4, 5 and 6 were, in fact, the same premises searched by the police under the warrant and were the premises in which she and the codefendant resided at the time of their arrest.

The hearing was adjourned to afford the defendants the opportunity to subpoena such additional documentary evidence from the Topographical Bureau of the Queens Borough President's Office as would reflect the street layout with relation to the subject premises. The court has been informed by both the attorney for the defendants and the Assistant District Attorney that, after examining the maps at the Topographical Bureau, it appears that the street address of the subject premises is '132--32 Hillside Avenue' although said premises are physically located on Kew Gardens Road and that the first two houses on Kew Gardens Road bear 'Hillside Avenue' addresses. One of these houses is known as '132--32 Hillside Avenue'. In addition to the Final Map on file in the Topographical Bureau, see the 'Belch-Hyde' Atlas.

Defendants contend that the search warrant contains the 'wrong' address of the premises sought to be searched. Therefore, they urge that the search was illegal and that the evidence obtained as a result of the search must be suppressed.

Neither the People nor the defendants have submitted any memorandum of law as to the specificity required in a warrant in describing the premises to be searched. After a research of the pertinent decisional law as applied to the facts here presented, this court is of the view that the warrant and search made thereunder survive the legal challenge made by the defendants.

The controlling test as to sufficiency and correctness of description was broadly set forth by the United States Supreme Court in Steele v. United States No. 1 (267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757). The court there stated at page 503, 45 S.Ct. at page 416:

'It is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.'

The test of sufficiency of description as formulated in Steele has been consistently followed and applied in subsequent cases, particularly in the Federal Courts. See, for example, United States v. Joseph (174 F.Supp. 539, affd. 278 F.2d 504, cert. den. 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52); United States v. Pisano (191 F.Supp. 861) and United States v. Goodman (312 F.Supp. 556).

In United States v. Joseph (supra), the court upheld a warrant in a factual situation akin to the facts in the case at bar. In Joseph, the warrant contained the address '209 Court Terrace', whereas the correct street address of the premises searched was '209...