People v. Simon

• Decision Date: 01 March 1985
• Citation: 107 A.D.2d 196,486 N.Y.S.2d 118
• Parties: PEOPLE of the State of New York, Respondent, v. David SIMON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 118

486 N.Y.S.2d 118

107 A.D.2d 196

PEOPLE of the State of New York, Respondent, v. David SIMON, Appellant.

Supreme Court, Appellate Division Fourth Department.

March 1, 1985.

Anthony F. Leonardo, Jr., Rochester, for appellant.

Howard R. Relin, Dist. Atty., Rochester, for respondent (Elizabeth Clifford, Rochester, of counsel).

Before DILLON, P.J., and DENMAN, BOOMER, GREEN and O'DONNELL, JJ.

DILLON, Presiding Justice.

On September 21, 1982 at about 12:15 a.m. police officers, acting pursuant to a no knock search warrant, entered and searched the apartment of one Diana Schofield at 239 Pearl Street in the City of Rochester. No one was present in the apartment when the police entered. They seized a large quantity of dynamite, as well as detagel, blasting caps and other items. At trial it was established that defendant was Schofield's boyfriend.

The prosecution proceeded on the theory that defendant had constructive possession of the explosives and the jury found him guilty of criminal possession of a weapon in the first degree (Penal Law § 265.04) and criminal possession of a weapon in the third degree (Penal Law § 265.02[2] ). Since the evidence was insufficient as a matter of law to prove constructive possession, we reverse the judgment and dismiss the indictment.

The record contains no evidence that defendant ever had actual physical possession of the seized contraband. In the absence of such proof, the burden was upon the People to show that defendant exercised "dominion or control over" the explosives found in the Schofield apartment (Penal Law § 10.00[8] ). This could have been accomplished, of course, by demonstrating that defendant had exercised dominion or control over the apartment or of the area in which the explosives were found (see People v. Watson, 56 N.Y.2d 632, 450 N.Y.S.2d 784, 436 N.E.2d 190; People v. Cicero, 106 A.D.2d 901, 483 N.Y.S.2d 545). In that connection the officer who executed the warrant testified that in addition to the explosives, the police seized personal papers addressed to the defendant and a jacket containing a slip of paper with the defendant's name on it. The personal papers were not addressed to 239 Pearl Street, however, and no other male clothing or personal items were found. No evidence was offered that defendant ever lived in the apartment (cf. People v. Watson, supra) or that he had a key to it (cf. People v. Robertson, 48 N.Y.2d 993, 425 N.Y.S.2d 545, 401 N.E.2d 903). The proof demonstrated only that he was an occasional visitor at the apartment (cf. People v. Cicero, supra). On such evidence it could not be concluded that the defendant exercised dominion or control over the searched premises (People v. Clinkscales, 73 A.D.2d 815, 423 N.Y.S.2d 738).

Of the 17 sticks of dynamite which were seized, some were found in plain view and the rest were found in a tool box. While there was testimony that two weeks prior to the search, defendant had been seen in possession of an olive green tool box and that four days prior to the search, he had been seen in possession of a gray tool box containing a foot long stick with a brown wax cover which looked like the seized dynamite, there was no other evidence connecting the defendant to either the tool box or the dynamite found in Schofield's apartment. In sum, the evidence was insufficient to demonstrate that defendant was in constructive possession of the explosives.

Having thus viewed the evidence, we need not decide whether the warrant to search the Schofield apartment was issued upon probable cause. In the interest of judicial economy, however, it may be appropriate to do so. In that regard, it is first to be observed that defendant, having no reasonable expectation of privacy in Diana Schofield's apartment, did not have standing to contest the search (People v. Ponder, 54 N.Y.2d 160, 445 N.Y.S.2d 57, 429 N.E.2d 735). The standing issue not having been raised, however, the question presented is whether there was probable cause for the issuance of a search warrant by a magistrate having before him the "deposition" of a private citizen asserting that the tenant of the premises to be searched had told him that there were "two cases of dynamite in her apartment on Pearl Street". We hold that there was probable cause to search the apartment.

The application for the warrant was made by a police officer upon his deposition and the affirmation of one John Pealo. Both were to the effect that Diana Schofield had on the previous evening stated to Pealo that there were two cases of dynamite in her apartment. Since Pealo's affirmation contained a statement that giving false information would constitute a misdemeanor, it was the equivalent of a deposition (People v. Sullivan, 56 N.Y.2d 378, 452 N.Y.S.2d 373, 437 N.E.2d 1130; see CPL 690.35[2][c] ). Pealo's status as a private citizen is sufficient to establish his reliability (People v. Hicks, 38 N.Y.2d 90, 378 N.Y.S.2d 660, 341 N.E.2d 227). Moreover, Pealo identified his informant and stated the basis of his knowledge, thus demonstrating that his information was not mere rumor.

That Pealo's deposition contained the hearsay statements attributed to Diana Schofield is not fatal to the application (People v. Hanlon, 36 N.Y.2d 549, 369 N.Y.S.2d 677, 330 N.E.2d 631). It merely required that the magistrate be satisfied as to the reliability of Schofield and the basis of her knowledge (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723). Since Schofield was also a private citizen, and the statement attributed to her was adverse to her penal interest, she was a reliable informant (People v. Wright, 37 N.Y.2d 88, 371 N.Y.S.2d 460, 332 N.E.2d 331). The basis of her knowledge was obvious; she was the best source of knowledge of the contents of her apartment. In these circumstances, the issuing magistrate had probable cause to believe that dynamite might be found in Diana Schofield's apartment (seePeople v. Plevy, 52 N.Y.2d 58, 67, 436 N.Y.S.2d 224, 417 N.E.2d 518).

Finally, we note that no other issues raised by defendant would require a reversal.

Accordingly, for reasons previously stated, the judgment should be reversed and the indictment dismissed.

Judgment reversed on the law and facts and indictment dismissed.

DENMAN, BOOMER and O'DONNELL, JJ., concur.

GREEN, J., concurs in the following Opinion.

GREEN, Justice (concurring).

I agree that the proof at trial was insufficient to establish beyond a reasonable doubt defendant's constructive possession of explosives seized from Diana Schofield's apartment. I write separately, however, to express my view that a reversal is also required because the search warrant upon which the explosives were seized was not supported by probable cause.

Defendant was convicted of criminal possession of a dangerous weapon in the first degree (Penal Law § 265.04), and criminal possession of a weapon in the third degree (Penal Law § 265.02[2] ) based upon the seizure of explosives, pursuant to a search warrant, from an apartment leased to his girlfriend, Diana Schofield. The application in support of the search warrant consisted of two affidavits. In one, John Pealo stated that "On 9/19/82 at approx. 10:30 a.m. I was at 39 Rosedale St. While I was there, Diana Schofield told me that her boyfriend Dave Simon [defendant] had two cases of dynamite in her apartment on Pearl St. I'm not sure what the number is on Pearl St. but the owner of the house is Ruth Anderson. I have heard from other people that Simon intends on using the dynamite to kill me." In the other affidavit, Police Officer Richard McCory stated that at approximately 8:45 p.m. on September 20, 1982, he had a conversation with John Pealo who resided at 284 Pearl Street and that the "sum and substance of said conversation was that dynamite was being stored at number 239 Pearl Street, Rochester, New York, the apartment of one Diana Schofield and David Simon the residents of said location." Officer McCory stated further that on September 20, 1982 he "did conduct criminal record checks on Diana Schofield and Richard [sic] Simon. Said record check proved that David Simon ... has a total of six arrests between 10/14/74 and 9/8/77 in New York State."

The issue thus posed is whether, based solely on these two affidavits, the search warrant was issued upon probable cause. The suppression court determined that it was (People v. Simon, 118 Misc.2d 745, 460 N.Y.S.2d 998). I disagree.

At the outset, I note that the People have waived their argument that defendant lacks standing to contest the validity of the search warrant. The People did not argue the standing issue in the suppression court or on appeal and have not preserved it for our review (see People v. Smith, 55 N.Y.2d 888, 449 N.Y.S.2d 19, 433 N.E.2d 1267; People v. Gonzalez, 55 N.Y.2d 887, 449 N.Y.S.2d 18, 433 N.E.2d 1266; see also, Matter of Pessano, 269 App.Div. 337, 341, 55 N.Y.S.2d 786, affd. 296 N.Y. 564, 68 N.E.2d 866; Matter of Van Wormer v. Leversee, 87 A.D.2d 942, 451 N.Y.S.2d 237). This failure, in my view, was not due to an oversight or negligence, but rather was the product of a calculated prosecution strategy. At the suppression hearing, the People were faced with a dilemma. If they pressed the argument that defendant had no reasonable expectation of privacy in Diana Schofield's apartment, they might have undermined their theory at trial that defendant's guilt was based on constructive possession of the explosives (see Penal Law § 10.00[8]; cf. People v. Watson, 56 N.Y.2d 632, 450 N.Y.S.2d 784, 436 N.E.2d 190). In any event, I agree with the majority that the issue of standing need not detain us.

Also, we need not address the issue of whether the warrant involved in this case was properly issued under the so called "objective good faith exception" to the exclusionary rule recently espoused in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 or the "totality of circumstances" test...