People v. Rooks
| Decision Date | 24 May 1962 |
| Citation | 229 N.Y.S.2d 923,35 Misc.2d 598 |
| Parties | PEOPLE v. Zina ROOKS. |
| Court | New York Court of General Sessions |
Joel H. Weinberg, New York City, for defendant, in support of the motions.
Frank S. Hogan, by Edward M. Davidowitz, New York City, of counsel, for the People, in opposition to granting of motions.
The defendant is charged in the Court of Special Sessions with the misdemeanors of unlawfully possessing barbiturates and unlawfully possessing a narcotic drug. She moves for multiple alternative relief in the Court of General Sessions. The defendant seeks (1) an inspection of the grand jury minutes, the predicate of the information pending in the Court of Special Sessions; (2) an order suppressing the evidence presented before the grand jury; or in the alternative (3) a direction that a preliminary hearing be held to show 'that the source of the evidence presented to the Grand Jury was illegally obtained'; or in the alternative (4) that an inquiry be made into the basis of the affidavit of the detective upon which the search warrant was issued; and (5) for a bill of particulars.
In view of the fact that the motion to inspect the grand jury minutes could only be made in the Court of General Sessions, it is appropriate that this court dispose of the entire omnibus motion, rather than merely pass upon the sufficiency of the grand jury minutes and refer to the Court of Special Sessions all the other relief which the defendant seeks.
With respect to the defendant's claim that the testimony produced before the grand jury was insufficient to charge a crime, the motion is in all respects denied. The testimony before the grand jury is such that if uncontradicted or undisputed, a trier of the facts would be warranted in returning a verdict of guilt.
With respect to the defendant's application to suppress the evidence that was presented to the grand jury, this part of the defendant's motion is denied. There is no proof that an illegal or improper search was made. The alleged contraband seized by the police officers was taken pursuant to a valid search warrant.
The defendant urges, in the event that the evidence is not suppressed, that a hearing be held to inquire into and examine the persons and informants who supplied information which formed the basis of the detective's affidavit upon which the search warrant was issued. Section 793 of the Code of Criminal Procedure provides 'a search warrant cannot be issued, but upon probable cause, supported by affidavit * * *.' Section 807 of the Code provides that the grounds for the issuance of the search warrant may be controverted.
In order to require a hearing, the defendant must show some facts which put in issue and controvert the grounds which prompted the court in issuing the search warrant. No such facts are set forth in the moving papers. The naked claim is there made that the detective's affidavit is based on information and belief, whereas he urges it should be based on specific proof that the property to be seized was positively in the place to be searched. The law makes no such requirement. A search warrant...
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People v. Gilligan
... ... This he has failed to do.' ... 'In order to require a hearing, the defendant must show some facts which put in issue and controvert the grounds which prompted the court in issuing the search warrant. No such facts are set forth in the moving papers.' (People v. Rooks, 35 Misc.2d 598, 600, 229 N.Y.S.2d 923, 926; quoted in People v. Hoey, 54 Misc.2d 1083, 1084, 283 N.Y.S.2d 1004, 1005.) ... Here, the only affidavits in support of the motion to suppress are made by the attorneys for the defendants. No facts are set forth, but only the belief of ... ...
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People v. Ricci
... ... Matters which are within defendant's knowledge are not proper subjects for bills of particulars. People v. Florence, 146 Misc. 152, 261 N.Y.S. 803, modified 146 Misc. 735, 262 N.Y.S. 775. Items which are matters of defense are not to be granted. People v. Rooks", 35 Misc.2d 598, 229 N.Y.S.2d 923 ... In all cases, bills of particulars rest within the sound discretion of the court. People v. Giles, 31 Misc.2d 354, 220 N.Y.S.2d 905; People v. Courtney, 40 Misc.2d 541, 243 N.Y.S.2d 457; People v. Matera, 52 Misc.2d 674, 276 N.Y.S.2d 776 ... \xC2" ... ...
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People v. Hoey
... ... Since no facts are set forth in the moving papers which create an issue respecting the grounds upon which the search warrant was issued, there is no need to hold a hearing.' People v. Rooks, 35 Misc.2d 598, 229 N.Y.S.2d 923 ... And--it has been further held that: '(s) 807 of the Code of Criminal Procedure is simply a directive to the Court to take testimony, 'If the grounds on which the warrant was issued be controverted'. It does not authorize a motion to ... ...