Town of East Hampton v. Omabuild USA No. 1, Inc.

• Decision Date: 30 May 1995
• Citation: 627 N.Y.S.2d 723,215 A.D.2d 746
• Parties: TOWN OF EAST HAMPTON, Appellant, v. OMABUILD USA NO. 1, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 723

627 N.Y.S.2d 723

215 A.D.2d 746

TOWN OF EAST HAMPTON, Appellant, v. OMABUILD USA NO. 1, INC., Respondent.

Supreme Court, Appellate Division Second Department.

May 30, 1995.

Thurm & Heller, New York City (Brian S. Sokoloff and Richard S. Sklarin, of counsel), for appellant.

Esseks, Hefter & Angel, Riverhead (Stephen R. Angel and Thomas F. Whelan, of counsel), for respondent.

Before SULLIVAN, J.P., and MILLER, SANTUCCI and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to permanently enjoin the alteration and use of certain improved real property in alleged violation of the Code of the Town of East Hampton, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Seidell, J.), dated December 16, 1993, as granted the defendant's motion to invalidate a search warrant and to suppress all evidence obtained as a consequence of its execution.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith.

The defendant Omabuild U.S.A. No. 1, Inc. (hereinafter Omabuild) is the owner of certain real property situated on the waterfront of Montauk Lake in the plaintiff Town of East Hampton (hereinafter the Town). The parties have engaged in a long-standing dispute and extensive litigation concerning alleged zoning, building, and fire code violations on Omabuild's premises. On March 8, 1991, during the pendency of this action by the Town to enjoin alleged violations of the Code of the Town of East Hampton (hereinafter the Code), the Town's alleged "Code Enforcement Officer" sought and obtained a criminal search warrant to search the premises for certain zoning violations. Upon execution of the warrant, Town officials photographed and took measurements of alleged Code violations on the premises, and seized a menu and a directory from a club operated on the property. The Town subsequently moved for summary judgment based on the results of the search, and Omabuild moved for an order invalidating the warrant and suppressing the evidence obtained as a consequence of its execution. The Supreme Court granted Omabuild's motion and invalidated the warrant on the grounds that it impermissibly authorized a general exploratory search, it was supported by affidavits of probable cause which alleged stale facts, it improperly authorized a search of unknown persons, and searchers seized items of personal property even though the warrant did not authorize such seizure. This appeal by the Town ensued.

The Town contends that its conduct in this case was more akin to a mere administrative inspection than a true criminal search, and that it should accordingly be judged pursuant to the more relaxed standards applicable to such inspections (see generally, People v. Keta, 79 N.Y.2d 474, 583 N.Y.S.2d 920, 593 N.E.2d 1328). We disagree. It is clear that the search was criminal in nature, inasmuch as the application for the warrant was made pursuant to CPL article 690, the Town has repeatedly stated that the purpose of the search was to investigate alleged criminal conduct, and the evidence recovered has twice been used as the basis for criminal charges against Omabuild.

Notwithstanding the foregoing, we find the reasons given by the Supreme Court for invalidating the warrant to be unpersuasive. The warrant did not lack the requisite degree of particularity regarding the premises to be searched and the property to be seized. It is well settled that warrants are not to be read hypertechnically and are to be accorded all reasonable inferences (see, People v. Robinson, 68 N.Y.2d 541, 510 N.Y.S.2d 837, 503 N.E.2d 485). Moreover, the language of the warrant and of the affidavits underlying the application are entitled to a common sense interpretation in view of the particular type and degree of criminal conduct alleged (see generally, People v. Nieves, 36 N.Y.2d 396, 369 N.Y.S.2d 50, 330 N.E.2d 26; People v. Teribury, 91 A.D.2d 815, 458 N.Y.S.2d 85). While the language of the warrant in this case is indeed broad with regard to the premises to be searched, it did not authorize a general exploratory search in view of the alleged numerous, pervasive violations which permeated virtually every area of Omabuild's property (see, People v. Hulsen, 178 A.D.2d 189, 577 N.Y.S.2d 48; People v. Reynolds, 124 A.D.2d 356, 507 N.Y.S.2d 295, affd. 71 N.Y.2d 552, 528 N.Y.S.2d 15, 523 N.E.2d 291; People v. Bogdan, 59 A.D.2d 1026, 399 N.Y.S.2d 766; People v. Katz, 112 Misc.2d 59, 448 N.Y.S.2d 85). Similarly, the conduct of Town personnel in taking photographs and measurements with respect to alleged code violations was not inappropriate or unauthorized (see generally, People v. Teicher, 52 N.Y.2d 638, 439 N.Y.S.2d 846, 422 N.E.2d 506; People v. Nelson, 144 A.D.2d 714, 535 N.Y.S.2d 132; People v. Katz, supra ).

It appears that the seizure of personal property consisting of the menu and directory exceeded the parameters of the authorized conduct set forth in the warrant. Thus, while these items are subject to suppression, the seizure of these items did not serve to invalidate the warrant. Likewise, even if we were to assume the truth of Omabuild's allegation that Town officials did not comply with the return and inventory provisions of CPL 690.50(5), noncompliance with these ministerial requirements would not undermine the validity of the warrant or the search (see, People v. Morgan, 162 A.D.2d 723, 558 N.Y.S.2d 88; People v. Nelson, supra; People v. LaBombard, 99 A.D.2d 851, 472 N.Y.S.2d 764; People v. Davis, 93 A.D.2d 970, 463 N.Y.S.2d 67). Contrary to Omabuild's argument, Town officials were under no obligation to request consent to enter onto the premises prior to applying for and obtaining the criminal search warrant.

We also find unpersuasive Omabuild's contention that the facts...