People v. Pacella
| Citation | 364 N.Y.S.2d 258,47 A.D.2d 711 |
| Parties | PEOPLE of the State of New York, Respondent, v. Frank PACELLA, Appellant. |
| Decision Date | 28 February 1975 |
| Court | New York Supreme Court Appellate Division |
Lawrence Katzman, Watertown, for appellant.
John F. Bastian, Watertown, for respondent.
Before MOULE, J.P., and CARDAMONE, GOLDMAN, DEL VECHIO and WITMER, JJ.
The items which defendant sought to have suppressed prior to his plea of guilty were found in his apartment in the course of searching it for marijuana and instruments adapted for its use, as provided in the search warrant. Although it appears that the officers exceeded the terms of the warrant in some aspects of their search, certain of the items seized but not mentioned in the warrant were properly seized incident to a valid custodial arrest (see People v. Weintraub, 35 N.Y.2d 351, 361 N.Y.S.2d 897, 320 N.E.2d 636; People v. McCaskey, 46 A.D.2d 692, 360 N.Y.S.2d 270). The seizure of the remaining items not set forth in the search warrant did not vitiate the valid seizure of items designated in the search warrant, particularly since nothing was found thereby which was used against defendant in the charges against him, and he was not prejudiced by such conduct (see People v. Baker, 23 N.Y.2d 307, 320--321, 296 N.Y.S.2d 745, 752--753, 244 N.E.2d 232, 237--238, and the cases cited therein). The suppression motion was, therefore, properly denied.
Again we are required to comment upon the failure of the District Attorney to perform his duty to the people of his county and file a brief in opposition to the appeal and in support of the judgment of conviction. 'It shall be the duty of every district attorney to conduct all prosecutions for crimes or offenses cognizable by the courts of the county for which he shall have been elected' (County Law, § 700, subd. 1). Unless the appeal is from a judgment which he concedes should be reversed, it is his duty to prepare and file a brief for the People in support of the judgment, or otherwise state his position with reference to it (People v. Wright, 22 A.D.2d 754, 253 N.Y.S.2d 653). 'This responsibility and duty of the District Attorney is in no way diminished or excused by reason of the fact that we have affirmed the conviction after a careful consideration of the record and law' (People v. Holcombe, 34 A.D.2d 728, 311 N.Y.S.2d 796; and see People v. Pitsley, 37 A.D.2d 905, 325 N.Y.S.2d 451; People v. Cerio, 34 A.D.2d 1095, 312 N.Y.S.2d 596; People v. Houston, ...
To continue reading
Request your trial
-
Tirado v. Comm'r of Internal Revenue
...at 199 (“things used to carry on the criminal enterprise”). Cf. United States v. Thompson, supra. See also People v. Pacella, 47 App. Div. 2d 711, 364 N.Y.S.2d 258 (4th Dept. 1975); People v. Mangialino, 348 N.Y.S.2d at 336 (“sufficiently associated”). In determining this relationship or ne......
-
State v. Abrahamson
...Ill.App.2d 97, 223 N.E.2d 273 (1967); Michaels, supra; People v. Jackson, 73 A.D.2d 1060, 425 N.Y.S.2d 408 (1980); People v. Pacella, 47 A.D.2d 711, 364 N.Y.S.2d 258 (1975); Commonwealth v. Oliver, 479 Pa. 147, 387 A.2d 1266 (1978). We believe a brief should be filed even in those instances......
-
People v. Dutcher
...that the District Attorney concedes should be reversed (see, People v. Herman, 187 A.D.2d 1027, 590 N.Y.S.2d 619; People v. Pacella, 47 A.D.2d 711, 364 N.Y.S.2d 258). (Appeal from Judgment of Steuben County Court, Scudder, J.--Sexual Abuse, 1st DENMAN, P.J., and PINE, LAWTON, DOERR and DAVI......
-
Murphy on Behalf of Rensselaer County v. Dwyer
...Attorney (People v. Czajka, 11 N.Y.2d 253, 254, 228 N.Y.S.2d 809, 183 N.E.2d 216). Petitioner, nevertheless, citing People v. Pacella, 47 A.D.2d 711, 364 N.Y.S.2d 258, People v. Pitsley, 37 A.D.2d 905, 325 N.Y.S.2d 451, People v. Sinclair, 28 A.D.2d 183, 184-185, 283 N.Y.S.2d 974 and People......