People v. Taylor

• Citation: 543 N.Y.S.2d 357,541 N.E.2d 386,73 N.Y.2d 683
• Parties: , 541 N.E.2d 386 The PEOPLE of the State of New York, Respondent, v. Alice TAYLOR, Appellant. The PEOPLE of the State of New York, Respondent, v. Paul TAYLOR, Sr., Appellant.
• Decision Date: 08 June 1989
• Court: New York Court of Appeals

Page 357

543 N.Y.S.2d 357

73 N.Y.2d 683, 541 N.E.2d 386

The PEOPLE of the State of New York, Respondent, v. Alice TAYLOR, Appellant.

The PEOPLE of the State of New York, Respondent, v. Paul TAYLOR, Sr., Appellant.

Court of Appeals of New York.

June 8, 1989.

John J. LaDuca, Rochester, for Alice Taylor, appellant.

Howard R. Relin, Dist. Atty. (Robert Mastrocola, Rochester, of counsel), for respondent.

OPINION OF THE COURT

KAYE, Judge.

At the core of this appeal, in a prosecution for criminal possession of a controlled substance and related offenses, is the meaning of "substantial compliance" with the requirements of a statute--here, a statute specifically mandating that testimony taken in support of a search warrant application "be either recorded or summarized on the record by the court." (CPL 690.40[1].)

During the evening of January 16, 1987, the local police department called Webster Town Justice Jack Van Ingen to the station to conduct a hearing on an application for a warrant to search defendants' residence. Because his own courtroom was undergoing repairs, Justice Van Ingen was unable to use the tape recorder there to record the statements. Instead, as he later described, he made a "few" handwritten notes for his "own edification" (in his words), while Police Officer Scott Parsons questioned both witnesses. Those notes were the only effort the Magistrate made to keep a record of the testimony. Several months later at the request of the District Attorney's office, Parsons prepared a reconstructed version of his questions and the informants' answers.

The warrant application recited that it was based on sworn testimony before Justice Van Ingen by confidential informants who within the previous 24 hours had purchased LSD at defendants' home. Police Officer Kenneth Rath, who made the application, claimed no personal knowledge of the facts on which it was based; his supporting deposition stated simply that he had interviewed two confidential informants, who said they had gone to defendants' residence, that one waited outside while the second went in and asked for two "hits" of LSD which were furnished, and that the informant had purchased LSD there several times previously. Apparently, neither informant would sign a sworn statement, and neither had previously supplied information to the police department.

When the warrant was executed a few hours after its issuance, the police found small quantities of LSD and marihuana and a prescription bottle containing a codeine preparation, and the present indictments followed.

Upon defendants' motion challenging the warrant, on June 9, 1987--less than six months from the date of the warrant--a suppression hearing was held at which both Justice Van Ingen and Police Officer Parsons testified. Justice Van Ingen could not find his notes. Although he testified that he had placed his notes in the "Taylor file," he also stated that he was not certain whether his own clerks had misplaced the file or the file had been given to the prosecutor. In any event, whatever the "Taylor file" might be, it is plain that it was not kept as an official court record, with the safeguards attendant upon preserving such records for purposes of legitimate challenge to the warrant or appellate review.

Initially, the Town Justice testified that he remembered nothing at all about the informants' testimony save that he had put them under oath and taken background information from them; he could not recall whether he had seen the supporting deposition before signing the search warrant. His memory was refreshed by dint of repeatedly being shown Parsons' reconstructed questions and answers. Eventually he recalled that both informants had mentioned going to defendants' house in order to purchase LSD, and that one informant stated that he had bought LSD. However, Justice Van Ingen was unable to recall any other questions or answers. Parsons, by contrast, testified in some detail about the responses that each informant had given to his questions.

County Court concluded that the warrant was defective, and suppressed its fruits, because viewed as a written application there was no information to satisfy the Aguilar-Spinelli requirement of reliability of the informants (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637), and viewed as an oral application there was no compliance with CPL 690.36. The Appellate Division reversed, holding that this was a written application supported by oral testimony and not an oral application; that Aguilar- Spinelli was inapplicable to a warrant application not based on hearsay; and that the Magistrate's reliance on the oral sworn testimony of the two informants sufficiently established probable cause. Concluding that the requirements of CPL 690.40 were not satisfied, we now reverse.

Preliminarily, we note that the Appellate Division, 140 A.D.2d 96, 530 N.Y.S.2d 742, correctly held that the application in this case was a written and not an oral search warrant application. Even though supported by oral testimony, the application was a formal document, sworn and subscribed by a police officer, with a supporting deposition (CPL 690.35[2][c]. An oral application, by contrast, is one "communicated to a judge by telephone, radio or other means of electronic communication." (CPL 690.36[1].) Further, we agree with the Appellate Division that the two-pronged Aguilar-Spinelli test ( see, People v. Griminger, 71 N.Y.2d 635, 529 N.Y.S.2d 55, 524 N.E.2d 409) is inapplicable. When a warrant application is based not on the personal knowledge of the police officer making the application but on information relayed to that officer by another person, the officer is in effect vouching for the reliability of an informant known to the police but not known to the Magistrate. But that standard is inapplicable where, as here, the witnesses appear and testify before the Magistrate, who is then himself in a position to assess their veracity in determining the existence of probable cause ( see, People v. Bartolomeo, 53 N.Y.2d 225, 233-234, 440 N.Y.S.2d 894, 423 N.E.2d 371).

The suppression motion should be granted, however, because the statutory standards for the warrant were not satisfied, and the purposes for which they exist were undermined. CPL 690.40 provides that in determining a search warrant application, "the court may examine, under oath, any person whom it believes may possess pertinent information." It then goes on to require that "[a]ny such examination must be either recorded or summarized on the record by the court." The procedure followed in this case did not comply with the statutory mandate of recordation.

As we have previously recognized, substantial--rather than literal--compliance may satisfy the written application requirements (People v. Brown, 40 N.Y.2d 183, 186-188, 386 N.Y.S.2d 359, 352 N.E.2d 545; People v. Sullivan, 56 N.Y.2d 378, 452 N.Y.S.2d 373, 437 N.E.2d 1130; cf., People v. Lalli, 43 N.Y.2d 729, 401 N.Y.S.2d 489, 372 N.E.2d 330). Plainly, however, conduct cannot be considered as in "substantial compliance" with statutory standards when the legislative purposes in adopting the statute have not been met.

Two legislative purposes have been identified as underlying the requirement of CPL 690.40(1) that the court itself record or summarize the witness' statement on the record: first, assurance of the regularity of the application process (People v. Crandall, 108 A.D.2d 413, 417-418, 489 N.Y.S.2d 614, affd. 69 N.Y.2d 459, 515 N.Y.S.2d 745, 508 N.E.2d 657) and second, preservation for appellate review of the grounds upon which a search warrant is issued (People v. Peterson, 47 A.D.2d 431, 434, 367 N.Y.S.2d 325). Neither objective was met here.

The lack of assurance of the regularity of the application process is manifest when this case is compared with People v. Brown, 40 N.Y.2d 183, 386 N.Y.S.2d 359, 352 N.E.2d 545, supra, which articulated the principle of substantial compliance for warrant applications. Unlike Brown, here it cannot be said that "the record shows a conscientious effort to comply with constitutional and statutory requirements". (Id., at 188, 386 N.Y.S.2d 359, 352 N.E.2d 545.) Although in Brown the informant's statement had not been recorded, the court noted on the record at the time the warrant was issued that he had heard the informant and that his testimony was essentially the same as the recorded statement made by the police officer. There is no comparable record by the court here. The Magistrate's "few" notes ^* taken for his "own edification" cannot be equated with an effort, let alone a conscientious effort, to create a contemporaneous record of the testimony given by the informants as required by statute. Moreover, no effort was made to file those notes with the court or preserve them in any other way for purposes of legitimate challenge to the warrant.

In Brown, the warrant was issued only a year after CPL 690.40 took effect. We indicated that, although the procedure followed was "not ideal," the circumstances were "novel, perhaps unique, and thus there are no clear violations of settled principles." (Id., at 188, 386 N.Y.S.2d 359, 352 N.E.2d 545.) Now more than a decade has elapsed, and a procedure that evidences even less of an effort to comply with the statutory mandate can be considered neither conscientious nor substantial compliance. For this case, such a procedure provides no assurance of the regularity of the process that resulted in issuance of the warrant, and for future cases it unacceptably dilutes the statutory standard.

Nor can it be said that the grounds upon which the Magistrate issued the warrant have been preserved for appellate review. By the time of the suppression hearing, there was no contemporaneous record of the informants' oral testimony, not even a summary of its contents. Moreover, the issuing Magistrate had no...