People v. Vaccaro

• Decision Date: 06 May 1976
• Parties: , 348 N.E.2d 886 The PEOPLE of the State of New York, Respondent, v. Salvatore VACCARO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 411

384 N.Y.S.2d 411

39 N.Y.2d 468, 348 N.E.2d 886

The PEOPLE of the State of New York, Respondent, v. Salvatore VACCARO, Appellant.

Court of Appeals of New York.

May 6, 1976.

Irving Anolik, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Amelia C. Anzalone, Peter L. Zimroth and Robert M. Pitler, New York City, of counsel), for respondent.

FUCHSBERG, Judge.

The issue before us is whether a police search of a restaurant and the seizure, during that search, of eight guns violated either the State or the Federal Constitutions (N.Y.Const., art. I, § 12; U.S.Const. 4th Amdt.) because both the search and the seizure were conducted without a warrant. For the reasons which follow, we decide that there was here no constitutional violation, and that the judgment of conviction should be upheld.

Defendant was tried by jury. He was convicted of the crimes of criminal possession of stolen property in the second degree, possession of a weapon, and, lastly, bribery and obstructing governmental administration. Earlier, after holding a full hearing on defendant's motion to suppress the seized evidence, the trial court ruled it admissible.

Before discussing the propriety of the warrantless nature of the search, we turn to the question of whether there was "reasonable suspicion' of criminal activity ris(ing) to the level of probable cause' (Sibron v. New York, 392 U.S. 40, 61, n. 20, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917). For without probable cause there can be no search, even with a warrant, it being indeed the function of a warrant to certify that there is such cause (CPL 690.40, subd. 2; People v. Singleteary, 35 N.Y.2d 528, 533, 364 N.Y.S.2d 435, 439, 324 N.E.2d 103, 105).

On July 26, 1971, Detectives Bill Missailidis and Mathew Rosenthal of the New York City Police Department were advised by two separate informers that the Pizza Box, a restaurant on Bleecker Street in lower Manhattan was 'the place to go in New York City to buy illegal weapons' and that the main distributor there was a man named 'Sal' (later to be identified as the defendant, Salvatore Vaccaro). One of the informers, Michael Andreyev, whose name was later disclosed at trial when he was called as a witness for the People, also advised the detectives that he personally had purchased a revolver from 'Sal' at the Pizza Box. Though it does not appear that either Missailidis or Rosenthal had previously received information from either informer, another detective had told them that in the past these men had provided him with information which turned out to be reliable and led to a conviction.

Nevertheless, though either hearsay or direct knowledge of an informer's prior performance may support a finding that he is reliable (People v. Hanlon, 36 N.Y.2d 549, 557, 369 N.Y.S.2d 677, 682, 330 N.E.2d 631, 635). Detective Missailidis did not rest upon that alone. He proceeded to check out Andreyev's story directly. He did so by watching Andreyev dial the Pizza Bos's telephone number, which the detective had learned, and then, using an extension telephone, listened in on the informer's ensuing telephone conversation with the defendant. At that time he overheard them discuss Andreyev's pretended desire to purchase five guns, and defendant's willingness to provide them out of his next shipment, suggesting that Andreyev keep 'in touch' with him in order to ascertain when the guns would be on hand. The overhearing of this conversation may be taken as verification of the informers' reliability (People v. Hanlon, 36 N.Y.2d 549, 558, 369 N.Y.S.2d 677, 683, 330 N.E.2d 631, 636, Supra).

In fact, almost two months went by before Andreyev learned that defendant had received a shipment. That was on September 20, 1971. However, though he tried to do so on that very day, he did not succeed in reporting it to the detectives until the following day, when it precipitated the search and seizure. In the intervening two months, no search had been attempted, either with or without a warrant. Therefore, since it is as of the time of the search that probable cause must exist (see People v. Marshall, 13 N.Y.2d 28, 35, 241 N.Y.S.2d 417, 422, 191 N.E.2d 798, 801; United States v. Rubin, 3 Cir., 474 F.2d 262, 268), it is not necessary for us to determine, in the face of the conversations of July 26 and the uncertainty as to the time when any shipment might arrive, whether probable cause existed before September 20 (cf. United States ex rel. Cubicutti v. Vincent, D.C., 383 F.Supp. 662, 666 (Gurfein, J.)). It suffices for our purposes that it clearly did exist on September 20 and 21, the connection between the events of July and September making the former supportive of a finding of probable cause on the latter occasion despite the passage of time.

We turn then to the particular facts on which the People base their assertion that they were justified in acting without a warrant. Though there is a strong judicial preference for search warrants (see Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576; People v. Gonzalez, 39 N.Y.2d 122, 127, 383 N.Y.S.2d 215, 218, 347 N.E.2d 575, 579; People v. Hanlon, 36 N.Y.2d 549, 558, 369 N.Y.S.2d 677, 683, 330 N.E.2d 631, 636, Supra), several 'exceptional circumstances' have been recognized 'in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate's warrant for search may be dispensed with.' (Johnson v. United States, 333 U.S. 10, 14--15, 68 S.Ct. 367, 369, 92 L.Ed. 436; see, also, People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607; People v. Taggart, 20 N.Y.2d 335, 283 N.Y.S.2d 1, 229 N.E.2d 581; People v. Gallmon, 19 N.Y.2d 389, 280 N.Y.S.2d 356, 227 N.E.2d 284.) One of these 'exceptional circumstances', the one relied on in the case before us, arises when an exigency has made time of the essence because 'evidence or contraband (is) threatened with removal or destruction.' (Chapman v. United States, 365 U.S. 610, 615, 81 S.Ct. 776, 779, 5 L.Ed.2d 828.)

In the present case, when, on September 20, Andreyev attempted to communicate with Detective Missailidis by telephone, it was, as he later testified at trial, because at 9:00 p.m. that evening his fellow informer had seen '25 or 30 guns' at the Pizza Box. However, since the detective was not on duty that night and was therefore unavailable to receive the call, the informer merely left a message that it was 'urgent' that he talk with him. As it turned out, that message was not received until approximately 4:00 p.m. on the following day, which was when the detective was due to report back to his office. He then returned the call promptly, and, upon learning of the informer's observations of September 20 at the Pizza Box, as well as the fact that on a subsequent visit during the intervening time two thirds of the guns appeared to be gone, he arranged,...