People v. Ricken
| Decision Date | 01 April 1966 |
| Citation | 49 Misc.2d 677,268 N.Y.S.2d 677 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Herman RICKEN, Defendant. The PEOPLE of the State of New York, Plaintiff, v. Elaine GALIETTA, Defendant. |
| Court | New York County Court |
D. Vincent Cerrito, Dist. Atty., Henry Bradt, Asst. Dist. Atty., of counsel, for the People.
Max Hershkowitz, Schenectady, for defendants Ricken and Galietta.
Mario A. Pacelli, Schenectady, amicus curiae.
The undersigned Judge at the hearing (Code Crim.Proc., § 807) announced that he would not review the question of whether or not there was probable cause for the issuance of the Search Warrants in question. This was solely a matter for determination by the Honorable John F. Dwyer, Justice of the Supreme Court, who originally issued the Search Warrants. Therefore, his judgment as to probable cause will not be reviewed herein.
However, certain testimony was taken and certain facts were elicited at the hearing which was held in the Schenectady County Court. This is the trial Court to which the Warrant and accompanying papers were transferred, pursuant to Section 810 of the Code of Criminal Procedure, and the following findings are now made.
1. The person seeking the Search Warrant in the Galietta case was Trooper Joseph V. Karas who in his affidavit and prayer for relief said, 'I respectfully request that the Court issue a Warrant and Order of Seizure', etc. The person seeking the Warrant in the Ricken case was Trooper Thomas J. O'Hea and who made a similar request for a Warrant in his prayer for relief in his affidavit. Admittedly neither Trooper Karas nor Trooper O'Hea appeared before Judge Dwyer on July 14, 1965 when the Search Warrants were issued by him.
2. The Search Warrants in each of the above cases were issued to 'any Peace Officer in the County of Schenectady'. The hearing herein clearly shows that while the Peace Officers to whom the Warrants were given for execution participated in the raids, neither of them made the returns of the Warrants. Nor were the returns made by the executing officers Forthwith to the issuing Judge. Nor did said executing officers deliver to the issuing Judge a written inventory of the property taken nor was an inventory verified by the officer executing the Warrant Before the issuing Judge. On the contrary, it appears from the hearing that the returns were signed by Trooper Zilinski in the Ricken case and by Trooper Creagan in the Galietta case and both verified before one Mead S. Kniskern, a Notary Public of Albany County on July 15, 1965.
3. It further appears that the Warrants and Returns in the above case and other cases passed through several hands and into a sealed manila envelope and then through the hands of several State Troopers and ultimately to Judge Dwyer on July 19, 1965. It is clearly evident that the officers making the search did not make direct returns to the Judge who issued the warrants.
4. The Warrants and Returns thereon were not delivered to the Schenectady County Court until on or about March 14, 1966, some eight months after the Search and Seizure.
The following section of the Code of Criminal Procedure is quoted.
From the above it is clear that a Search Warrant is to be directed to a Peace Officer and requires the Officer to bring the property found Before the Judge, Justice or Magistrate. The hearing discloses that no such direction was followed by the officers in either of the searches herein.
5. It is also clear that the 'person seeking the warrant' did not appear before the issuing Judge and make himself available for examination under oath as Section 794 of the Code of Criminal Procedure seems to require.
6. Section 796 of the Code of Criminal Procedure requires that the person commanded to make the search 'for the property specified, and to bring it before the judge, justice or magistrate'. This direction was not followed.
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People v. Rose
...that the 'filing of the inventory and furnishing the defendants with a copy thereof constitutes sufficient compliance.' People v. Ricken, 49 Misc.2d 677, 268 N.Y.S.2d 677, is not Apropos since there the search was voided because of a number of defects in the application for a search warrant......
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People v. Gray
...of another court. DP It seems that this question has not as yet been directly passed upon. It was disposed of in People v. Ricken, 49 Misc.2d 677, 268 N.Y.S.2d 677, but only in an elliptical way. In it motions to controvert and to suppress were brought before Judge Wemple of Schenectady Cou......
- People v. Ricken