Police Benev. Assn. of New York State Police, Inc. v. Gagliardi

• Decision Date: 30 March 1961
• Citation: 9 N.Y.2d 803,215 N.Y.S.2d 513
• Parties: , 175 N.E.2d 170 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., etc., Respondents, to vacate a search warrant, etc.
• Court: New York Court of Appeals Court of Appeals

Page 513

215 N.Y.S.2d 513

9 N.Y.2d 803, 175 N.E.2d 170

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., etc., Respondents, to vacate a search warrant, etc.

Court of Appeals of New York.

March 30, 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.

Order affirmed. The Appellate Division was correct in holding that no appeal lies from the order denying appellants' application to vacate a search warrant and for the return of the property seized thereunder, as this is an order in a criminal cause, an appeal from which is not provided for under the Code of Criminal Procedure.

All concur.