People v. Ventura, 2004 NY Slip Op 50468(U) (NY 5/6/2004), 3933.

CourtNew York Court of Appeals
Writing for the CourtThomas F. Liotti
Citation2004 NY Slip Op 50468(U)
Decision Date06 May 2004
Docket Number3933.

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2004 NY Slip Op 50468(U)
Justice Court of the City of New York, Nassau County.
Decided May 6, 2004.

DWIGHT D. KRAEMER, ESQ., Westbury, NY, Village Attorney and Prosecutor, for the Village:

ANTHONY MASTROIANNI, ESQ., Westbury, NY, for the Defendant:


Introduction and Facts

On September 25, 2003, the Hon. Elizabeth D. Pessala, Associate Village Justice of this Court, signed a search warrant directed to "any police officer of the County of Nassau." The search warrant provided:

"Proof, by affidavit, having been this day made before me by William Mello, Senior Building Inspector, Village of Westbury, Frank Gagliano, Public Works, Village of Westbury and John Salerno, Department of Public Works, Village of Westbury that there is probable and reasonable cause for the issuance of the search warrant1, as set forth in the affidavit and Exhibits attached hereto and made a part hereof as if fully set forth herein; you are therefore, commanded to make [a] search with Senior Building Inspector William Mello and his agents, between 09/25/03 and 10/02/032 in the hours between 6:00 A.M. and 9:00 P.M. of the

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entire premises designated and described as 335 Princeton Street, Westbury, New York for the following personal property:

—illegal3 kitchen, plumbing, sleeping quarters in basement apartment.

—evidence of two (2) family dwelling being maintained on the subject premises.

—evidence of key locked doors to sleeping quarters in the premises.

—evidence of over occupancy of the premises.

"The seizure of the foregoing evidence shall be limited to the taking of still photographs and videotape pictures of the inside and outside of the premises. This warrant must be executed within 10 days of the date of signing and a return to court 10 days thereafter.

"If you find the same or any part thereof you are hereby directed to return and deliver said evidence to the undersigned Justice of the Village Court without unnecessary delay."

The Senior Building Inspector4 submitted what may be described as an exhaustive affidavit in support of the application. This Court wonders why, in view of the thoroughness of this affidavit and the apparent pre-warrant investigation, that a search and search warrant were needed at all unless the Village is simply trying to test the legal waters in this case to determine whether they may have another tool at their disposal, namely search warrants, that they may use to enforce the Village's zoning and building code laws. The application for and the execution of a search warrant may in themselves deter the proliferation of illegal housing. The execution of a search warrant is an extremely frightening event for those subject to it. The court questions the need for this warrant because there is no legal requirement that a warrant be obtained in order to take photos of the outside of the premises from a public thoroughfare in front of the home.

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However, this Court finds that the Village has acted in good faith attempting, for example, to obtain the homeowner's consent for the search prior to seeking the warrant and no doubt believing that similar actions have been approved and utilized in other villages without challenge. The Senior Building Inspector, William Mello's affidavit, in support of the search warrant reads as follows:

"William Mello, being duly sworn, deposes and says that:

"I have been employed as Senior Building Inspector of the Village of Westbury, since January 6, 2003. Prior to my employment in the Village of Westbury I have been employed by the Village of Freeport for 8 years as a Building Inspector and Code Enforcement Officer. During the period of time I have been employed in the Village of Westbury and during my employment in the Village of Freeport, I have acted and made the type of observations set forth in this affidavit in that capacity.

"There is probable and reasonable cause to believe and I do believe that there is evidence of the said described violation that the premises has been used or is being used as a two (2) family dwelling and the cellar is being used as an illegal apartment dwelling in violation of §79-2, §83-6, §112-7, §184-4, §248-6 A and §248-283 of the code of the Village of Westbury and New York State Multiple Dwelling Law §30 and §34.

"There is probable and reasonable cause to believe and I do believe that the aforesaid property may be found in or upon the premises hereinbefore described or designated. The facts supporting the probable and reasonable cause hereinbefore alleged are as follows:

"The subject property, 335 Princeton Street, is a two story house within the Incorporated Village of Westbury, New York. As shown on the records of the Department of Buildings of the Village of Westbury it is located on a quiet residential block consisting of one (1) family homes neatly maintained on a tree lined block.

"During the month of June 2003, I received information that the tenants of a cellar apartment located at 335 Princeton Street, Westbury, New York were seen leaving the house in the morning and returning late in the evening. The information was received from a confidential informant whom I consider reliable based upon past experience with the informant. This belief [sic] is also founded upon the information presently received when considered and evaluated in the light of all the facts and circumstances set forth in this affidavit.

"Acting on the information I received, as stated in this affidavit, I conducted the following further investigation to wit:

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"(1) I reviewed a file maintained by the Department of Buildings with regard to 335 Princeton Street concerning previous complaints which had been received concerning over occupancy of the premises. Within the file I found the following, copies of which are attached:

"(a)The report of Frank Gagliano, dated 11/27/01, indicating observations of 7 to 8 cars at the premises. After running the plates, it was found that many of the plates came back as owned by individuals who had previously resided at 710 Jefferson Street in the Incorporated Village of Westbury, a location where an over occupancy case had previously been successfully prosecuted and resulted in a conviction of the owner. Upon attempting to gain permission to enter the premises at a side cellar entrance, permission to enter was denied and a baby's cries were heard coming from the basement.

"(b)A confidential written complaint, dated 6/5/02 from a resident of Princeton Street, indicating 20 people reside at 335 Princeton Street and over 7 cars are parked at the premises.

"(c)Three written statements, from three separate confidential informants, stating that they were being charged excessive rent for space that was not suitable to live in by Juan Cruz, all dated July 5, 2002. Two of the statements indicate occupancy of the basement and one indicates the rental of space in the basement for $400.00 per month.

"(d)Plates run obtained from premises run on 1/13/03 and 1/29/03 indicate the following owners:

Juan E. Cruz, Jose Ventura (2 vehicles), Maurice Gill, Cesar Collado, Romeo A. Cruz-Guillen, Rafael R. Ceja, and Patricia A. Tulloch.

"(2) During June and July 2003, I received confidential phone messages dated 6/25/03 and 6/30/03 and two written complaints from residents of Princeton Street. One of the written complaints included a list of residents and cars dated 7/17.03. These complaints indicated 22 to 35 people reside at 335 Princeton Street living there in shifts, up to 12 cars are parked at the premises and there is excessive garbage.

The list obtained from a confidential informant listing vehicles and residents is as follows:

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                Green truck Mr. & Mrs. Ventura & 4 kids 6
                RAV 4 Husband & Wife (Juan & Ingrid) 2
                Red Camry Husband & Wife & twin boys 4
                Elderly Man & Woman (Elders) 2
                Silver Toyota Young Woman & boy 2
                 Sub Total 16
                Bikes 5 Men back cellar entrance 5
                Red Nissan Stanza Man & Woman 2
                White Van Man & Woman 2
                 Sub Total 9
                Total Occupancy of Premises 25

"(3) During July I also obtained an affidavit from John Salerno, of the Village of Westbury Department of Public Works, indicating on July 29, 2003 on occasion of the weekly garbage pickup at 335 Princeton Street, Westbury, New York, he observed eight (8) bicycles chained in the rear yard, a rear basement entrance with the light on, four vehicles in the driveway, three additional vehicles parked in front of the house, two dog houses and many children's toys. He also indicated that the normal garbage load at the premises is three to four times the normal amount for a one family house.

"(4) After receiving complaints regarding 335 Princeton Street, Westbury, New York, I had occasion to obtain a copy of the last deed of record of premises 335 Princeton Street, Westbury, New York which deed indicated that Juana Ventura and Jose Ventura purchased said premises on August 13, 2001. A copy of the deed is attached. Also attached is a copy of the Certificate of Occupancy for said premises which I obtained from the files of the Building Department and indicates the premises is a one family dwelling. I also obtained from the Westbury Water District the attached copy of the water usage at 335 Princeton Street, Westbury, New York which indicates water usage as follows:

                10/31/96 31,000
                04/30/97 29,000
                10/31/97 48,000
                04/30/98 35,000
                10/31/98 59,000
                04/30/99 41,000
                10/31/99 83,000

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04/30/00 32,000
                10/31/00 52,000
                04/30/01 15,000
                10/31/01 40,000
                04/30/02 238,000
                10/31/03 296,000

"(5) Based on all of the foregoing I conducted surveillance at 335 Princeton Street, Westbury, New York on August 11, 2003 from 5:30 A.M. to 8:00 A.M. My surveillance indicated the following:

                0530 Arrive at location.

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