People v. Santora

• Decision Date: 17 September 1962
• Citation: 233 N.Y.S.2d 711
• Parties: PEOPLE v. Savorio SANTORA, Anthony Sasso, Rudolph Deluca, Joseph Gentile and Pete Como.
• Court: New York Supreme Court

Page 711

233 N.Y.S.2d 711

PEOPLE v. Savorio SANTORA, Anthony Sasso, Rudolph Deluca, Joseph

Gentile and Pete Como.

Supreme Court, Special and Trial Term, New York County, Part XXX.

Sept. 17, 1962.

Frank S. Hogan, New York City, by Peter D. Andreoli, Asst. Dist. Atty., for the People.

Joseph A. Aronstein, New York City, for defendant.

MITCHELL D. SCHWEITZER, Justice.

This is an application by defendants to have a warrant issued by this court on June 14, 1962, for service at any time of day or night, declared null and void.

The warrant provided for a search of a ground floor apartment located at No. 304 East One Hundred and Seventeenth Street, City and County of New York, and authorized the seizure of evidence of a policy operation. The detailed affidavit was based on extensive observations by the police on June 9, 11, 13 and 14, 1962. The affidavit concluded that 'a policy bank is being operated in the Ground Floor East Apartment at premises 334 East 117 Street, in the City and County of New York, and that the operators are present in the apartment between the hours of 9 P.M. and 1 A.M. the following day and that records of policy bets and paraphernalia used to carry out the operations of a policy bank are concealed in the said apartment and may be found therein.'

Petitioner contends first that the warrant is controvertable due to the failure to include a direction in it that it be executed within ten days of issuance, and, second, that the affidavit supporting the application for the search warrant did not positively state that the property to be seized was on the premises to be searched as required by section 801, Code of Criminal Procedure ¹ (repealed as of July 1, 1962, Chapter 542, L.1962).

As to the first allegation, it is readily apparent that the inclusion of a ten-day provision is wholly unnecessary. If the warrant is not executed within that period, the warrant automatically falls (sec. 802, Code Crim.Proc., repealed as of July 1, 1962, supra). Nothing would be gained by adding such instructions to the fact of the warrant. In Mitchell v. United States, 103 U.S.App.D.C. 341, 258 F.2d 435, the court held that even though Rule 41(c) of the Federal Rules of Criminal Procedure required that the search warrant be executed 'forthwith,' the ten-day limitation in subdivision (b) for the execution and return of the warrant governed. The latter subdivision (d) is comparable to former section 802, Code Criminal Procedure. It would appear, therefore, that former section 802, Code Criminal Procedure, acted as a statute of limitations regarding the execution and return of search warrants, rather than a substantive direction to be included in the body of the warrant. Furthermore, section 797, Code Criminal Procedure, prescribes a statutory form for a valid search warrant, and it does not contain words indicating the time within which it is to be executed. Petitioner's contention, therefore suggests that the form authorized by statute is invalid. Such an allegation cannot seriously be considered by this court.

None of the cases cited and relied upon by the defendant is applicable or controlling to the issue. In Giles v. United States (1st Cir., 1922, 284 F. 208), the court reversed a lower court order denying an application to vacate a search warrant and suppress the evidence obtained thereunder, holding that the affidavit of the police officer upon which the search warrant was obtained was fatally insufficient because it failed to show facts indicating the existence of probable cause for believing that a crime was being committed and that the fruits of the crime would be located on the premises.

True it is, as the defendant contends, there is dicta holding that the warrant should be specific and contain the affirmative requirement that it be executed and returned within ten days. Giles v. United States, supra, at p. 215.

However, at least two other later federal cases (both cited by the defendant in his brief) have specifically disclaimed this dicta. In Fry v. United States ([9th Cir., 1925], 9 F.2d 38), the court refused to follow this dicta and stated at page 39, 'making the return is a ministerial act, to be performed after executing the warrant (Rose v. United States [C.C.A. 6] 274 F. 245), and if it is made within the 10 days it should not affect the search or seizure made by direct authority of the process' (Benton v. United States, 70 F.2d 24 [4th Cir. 1934]) disavows the dicta in the Giles case in the following unequivocal language. There the court stated (70 F.2d at p. 26): 'One of the principal points raised as to the validity of the warrant is that it failed to contain on its face the requirement as provided by the statute that it must be returned in ten days and that such failure rendered it fatally defective. * * * The act provides within what time the search warrant must be executed and returned, and, after the expiration of this time, unless executed, the warrant is void, but we do not think it is necessary to incorporate this provision in the warrant itself. Fry et al. v. United States (C.C.A.) 9 F.2d 38.' (Emphasis supplied .)

Furthermore, the two Mississippi cases cited and relied upon by petitioner (Powell v. State, 146 Miss. 677, 111 So. 738, 739; Johnson v. State, 202 Miss. 233, 31 So.2d 127, 128) are inapplicable, since Mississippi law requires the return date to appear on the face of the warrant (Hemingway's Code, sec. 2088, as amended by Laws 1924, c. 244, § 5).

The second contention presents on face a more formidable argument . At the time the warrant was issued, former section 801, Code Criminal Procedure, read: 'that it be served in the daytime, unless the affidavits be positive that the property is on the person or in the place to be searched.'

It should first be noted that it is unnecessary to use the specific word 'positive' in the affidavits nor is a strictly literal interpretation of that word required (Ewing v. United States, 37 F.2d 287 [5 th Cir., 1930] concerned a similarly worded federal statute (now Rule 41[c], Federal Rules Criminal Procedure). The court held that 'unless an affidavit be made on the premises, something unthinkable in the orderly procedure of applying for a warrant, it would be manifestly impossible for the affiant to state...