Police Benev. Ass'n of New York State Police, Inc. v. Gagliardi

• Decision Date: 07 July 1961
• Citation: 10 N.Y.2d 749,219 N.Y.S.2d 604
• Parties: , 177 N.E.2d 47 Application of POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE POLICE, INC., et al., Appellants, v. Joseph F. GAGLIARDI, District Attorney of Westchester County, et al., Respondents, to vacate a search warrant etc.
• Court: New York Court of Appeals Court of Appeals

Page 604

219 N.Y.S.2d 604

10 N.Y.2d 749, 177 N.E.2d 47

Application of POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE POLICE, INC., et al., Appellants, v. Joseph F. GAGLIARDI, District Attorney of Westchester County, et al., Respondents, to vacate a search warrant etc.

Court of Appeals of New York.

July 7, 1961.

Appeal from Supreme Court, Appellate Division, Second Department, 9 A.D.2d 929, 195 N.Y.S.2d 109.

The Police Benevolent Association of New York State Police, Inc., and another made an application to vacate a search warrant issued by the County Judge of Westchester County on February 19, 1959 under Sections 791-813 of the Code of Criminal Procedure. The application was made on the ground that the deposition in support of the issuance of the search warrant did not satisfy the terms of Section 795 of the Code of Criminal Procedure in that it failed to set forth facts tending to establish the grounds for issuance of the search warrant as set forth in Section 792 of the Code of Criminal Procedure, and in that it failed to set forth facts establishing probable cause for belief that such grounds existed.

The Supreme Court, Special Term, Westchester County, Hugh S. Coyle, J., rendered an order denying the application, and the association and another appealed.

The Appellate Division dismissed the appeal and held that there was no provision in the Code of Criminal Procedure for a proceeding to vacate a search warrant or for an appeal in such a proceeding from an order denying the application to vacate.

The association and another appealed to the Court of Appeals.

The Court of Appeals, 9 N.Y.2d 803, 215 N.Y.S.2d 513, 175 N.E.2d 170, affirmed the order and held that the Appellate Division was correct in holding that no appeal lay from the order.

Motions were made in the Court of Appeals for reargument and to amend the remittitur.

Motion for reargument denied.

Motion to amend the remittitur denied upon the ground that the federal constitutional questions raised by appellants relating to the merits of this appeal were not considered in view of our holding that there is no statutory authority providing for an appeal from an order of this nature.