People v. Wolzer

• Decision Date: 27 February 1973
• Citation: 41 A.D.2d 679,340 N.Y.S.2d 953
• Parties: The PEOPLE of the State of New York, Appellant, v. Stephen Hugh WOLZER et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 953

340 N.Y.S.2d 953

41 A.D.2d 679

The PEOPLE of the State of New York, Appellant, v. Stephen Hugh WOLZER et al., Respondents.

Supreme Court, Appellate Division, Third Department.

Feb. 27, 1973.

Francis J. Vogt, Ulster County Dist. Atty., Kingston, Edward M. P. Greene, Kingston, of counsel, for appellant.

Joshua N. Koplovitz, Woodstock, for respondent, Bruce Baxter Long.

Schunk & Torraca, New Paltz, Joseph P. Torraca, New Paltz, of counsel, for respondent, Stephen Hugh Wolzer.

Before STALEY, J.P., and GREENBLOTT, COOKE, KANE and REYNOLDS, JJ.

MEMORANDUM DECISION.

Appeal from an order of the County Court of Ulster County, entered April 20, 1972, which granted defendants' motion to suppress evidence seized pursuant to a search warrant.

The defendants were indicted for criminal possession of dangerous drugs in the third degree and sixth degree and for criminal possession of instruments for the administering of narcotic drugs. The drugs defendants allegedly possessed were seized by police officers during a pre-dawn raid on their college dormitory room, conducted pursuant to a search warrant issued the previous day by a Town Justice. The trial court held that probable cause for the issuance of the warrant had not been established.

The primary issue presented on this appeal is whether the affidavit of the police officer on his request for a search warrant set forth sufficient allegations of fact to satisfy the disinterested magistrate that there was reasonable cause to believe that the property sought by the search would be found in the place degisnated in the warrant. In order to resolve this question the pertinent parts of the affidavit must be examined together with principles of current case law. The affidavit stated:

2. That on March 21, 1971 at about 7:00 A.M., while performing my duties as a police officer, I had occasion to meet * * * age 14 * * * New Paltz, New York as he walked along the street. As a result of my interview of this subject, I subsequently found him in possession of a small plastic bottle which contained five (5) pink colored tablets and small foil wrapped piece of hashish. * * * told me that he had purchased these items on March 20, 1971 at about 8:30 P.M. at Room 213D, LeFevre Hall, State University of New York, New Paltz, New York from a person who he knew only as 'Steve'. He told me that he had been at a dance at the New Paltz Middle School, and that upon leaving, went to Room 213D, LeFevre Hall, where he knocked on the door and went into the room where 'Steve' was living. They conversed for a few minutes, and then * * * asked 'Steve' if he could buy some LSD and Hashish. 'Steve' then sold him six (6) pink colored LSD tablets for six ($6.00) dollars, taking them from a matchbox which was on a shelf on the left hand side of the room as you enter. 'Steve' then also sold him the piece of hashish for five ($5.00), taking that from the drawer of his desk.

3. On March 21, 1971 I gave the small plastic bottle containing the suspected drugs, LSD and Hashish, to Investigator C. T. Searles of the BCI, Kingston, New York, who in turn gave the bottle and its contents to Investigator C. S. Van Wagenen, BCI, Kingston, New York. Investigator Van Wagenen personally transported same to New York State Police Laboratory on March 30, 1971 and personally observed the laboratory analysis which was performed on the contents of the bottle, that analysis confirming that the five (5) pink pills were LSD, and that the contents of the foil wrapper was hashish.

4. On March 31, 1971 I showed several pictures of suspected narcotics users to * * * and from those he identified one particular photograph as being the same subject from whom he had purchased the LSD and Hashish on March 20, 1971.

5. That this photograph identified by * * * has been identified as Stephen Hugh Wolzer, dob 7/10/51, and that this subject is named in the Student Directory of the State University of New York, New Paltz, New York with his address listed as 720 Fort Washington, New York, New York (and) Room 213D, LeFevre Hall.

6. Further, that Stephen Hugh Wolzer is a person whose name appears in the files of the New York State Indentification and Intelligence System, he having been previously arrested for criminal possession of marijuana, hashish and LSD.

Thus the source of the information that set the police officers in motion was an 'informer' and the rules as to his reliability and the reliability of his information must apply....