People v. Pescatore
| Decision Date | 04 June 1984 |
| Citation | 102 A.D.2d 834,476 N.Y.S.2d 465 |
| Parties | The PEOPLE, etc., Respondent, v. Leopold PESCATORE and Pantaleo Ruocco, Appellants. |
| Court | New York Supreme Court — Appellate Division |
Paul A. Bartolotta, Bronxville (Morton N. Wekstein, Yonkers, of counsel), for appellants.
Carl A. Vergari, Dist. Atty., White Plains (Joseph M. Latino and Gerald D. Reilly, Asst. Dist. Attys., of counsel), for respondent.
Before MOLLEN, P.J., and TITONE, WEINSTEIN and RUBIN, JJ.
MEMORANDUM BY THE COURT.
Appeals by defendants from two judgments of the County Court, Westchester County, one rendered April 13, 1983, convicting defendant Leopold Pescatore of possession of gambling records in the second degree, upon his plea of guilty, and imposing sentence, and the other rendered May 2, 1983, convicting defendant Pantaleo Ruocco of possession of gambling records in the first degree, upon his plea of guilty, and imposing sentence. These appeals bring up for review the denial of those branches of defendants' pretrial motion which sought suppression of certain evidence.
Judgments affirmed, and as to defendant Ruocco matter remitted to the County Court, Westchester County, for further proceedings pursuant to CPL 460.50, (subd. 5).
The defendants, Pantaleo Ruocco and Leopold Pescatore, were indicted for possession of gambling records in the first degree, promoting gambling in the first degree, and possession of gambling records in the second degree. The charges stemmed from the execution of a search warrant, during which policy slips and a quantity of United States currency were seized from the defendants and Ruocco's 1976 yellow Lincoln automobile. The warrant issued by County Court Judge CARMINE MARASCO on February 11, 1982 authorized the search of Ruocco and an unidentified but described male (presumably Pescatore), as well as the search of "a 1969 Gold Cadillac, New York Registration number 931-GDE and any car driven or occupied by Ruocco". The affidavit submitted in support of the application for the warrant specifically mentioned both that vehicle and the 1976 yellow Lincoln.
The defendants made a pretrial motion for, inter alia, "an Order suppressing any and all evidence seized at the time arrested * * * on the grounds that said evidence was seized without a valid warrant, warrant of arrest, without consent and without probable cause prior to the arrest of and after an exploratory search" in violation of their Federal and State constitutional rights as well as their State statutory rights. Although defendants mentioned "DISCOVERY OF CONFESSION AND HEARING UPON VOLUNTARINESS" in the caption of the notice of motion, they actually requested a hearing "on the voluntariness of the alleged statements * * * pursuant to Section 710.20 of the Criminal Procedure Law" for the first time in their reply to the People's affirmation in opposition to the motion. The defendants also denied that they were given their Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and that they made any statements to law enforcement officers.
By order entered June 15, 1982, the County Court, without a hearing, granted the motion to suppress physical evidence with respect to defendant Ruocco. As to defendant Pescatore, the court held, "for lack of standing * * * the Court would grant motion...
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