Petition — Schwartz v. New York

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Petitioner,

vs.

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

Ow Petition ror a Wait or CerTionarI To THE SuPseme

Court or rae State or New York, Apreiate Drvision,

Fiast DeraRTMENT

Invine ANOLIK

Attorney for Petitioner |

225 Broadway

New York, NY 10007

(212) 732-3050

Questions Presented.

1. Whether the State courts should have suppressed a

search warrant when it became evident that the sole pros-

ecution witness, a police officer, had intentionally and

recklessly given false information to a Magistrate in order

to obtain that warrant? (Franks v. Delaware, 438 U.S.

154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 [1978].)

2. Whether there was probable cause to issue a search

warrant, in view of the fact that the officer whose affidavit

was used to obtain the warrant had given false informa-

tion and was unable to state the particular premises to be

searched or the items to be seized?

Parties.

The parties in the Court below and in this Court are the

same, namely Ben Schwartz and The People Of The Staie

of New York.

TAT a it

ae ——=—-

; ii.

Table of Contents.

Page

Ne Ee ss ob ihe nes cee edeaes i

Mat cate én tabs dbsedone chewesinge ¢ i

i cin dbs. ut rhdeseedcsvawstoads ii

CP a ihurcséheivebesccorccccccceses l

ete iN obese kegipsveciocneteeas 2

Constitutional and Statutory Provisions Involved . . 3

Statement of the Case—Introductory ............ 3

The Evidence Relevant to This Petition ........... 3

Reasons for Granting the Writ:

I. The hearing Court below found that false in-

formation was in fact given by the officer 2

who submitted an affidavit to the Magistrate ;

in support of an application for a search war-

rant. Under those circumstances, the motion

to controvert the warrant should have been

granted. The false information referred to

essential aspects of the warrant and, in

essence, revealed that the Court officer in

fact did not know specifically which premises

_ were to be searched and what items were to be

Il. In view of the false information given by the

affiant herein, the search warrant was void :

because it was not founded upon probable :

cause. Without the false statements, there j

was no specificity as to the place to be > is

searched or the items to be seized .......... ll .

Calidlisiat ons co eck ine ceeds eee 12

Index to Appendix.

Order of Appellate Division Dated March 6, 1980... 1a |

“Order of New York State Court of Appeals Dated ‘

eae 99. 198D- o. 6. Feccka ceabek erie 3a

Order and Opinion of the New York State Court of a

PIE: sus 0003 Bia vghwnatevanciorerae 4a 3

Certificate Denying Leave to Appeal to the Court of z

RRR. os ss cspedicecncelcs sak veteran 7a

Affidavit of P.O. Dominick Ragusa ............. 8a

. Sear Wanreet ou. i ccdiicns hee ak 12a %

; TABLE OF AUTHORITIES. a

3 ; ke

A CASES: Page’ 4

¥ yi

Berger v. New York, 388 U.S. 41, phase

Feet TOON EES Se = Coats coaaee, Er

iv.

Page

Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674,

57 L. Ed. 2d 667 (1978) ............0005- 7,8,9

Johnson v. United States, 333 U.S. 10, 92 L. Ed.

i WR ee We ras cee fo dee ae 10

Ker v. California, 374 U.S. 23, 10 L. Ed. 2d

Rs. Sk bas 3 Oh cS taaee choke ee. 10

King v. United States, C.A. 4th, 1960, 282 F. 2d

BG Ds obo cht vow chkbcs beer ces have 7

LO-JO Sales, Inc., v. New York, 442 U.S. 319, 60 L.

IR 6 og eres kes ite obec eee 11

Lowery v. United States, C.C.A. 8th, 1947, 161 F.

2d 30, cert. den. 331 U.S. 849, 91 L. Ed.

SEG Se Siok cece earens we dphe Sedghteke 11

Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684,

Sy eC. RR re ar oe 9

Miller v. United States, 357 U.S. 301, 2 L. Ed.

BRI oki a avin'e cis ise vtdarediess 9

People v. Alfinito, 16 N.\. 2d 181, 264 N.Y.S. 2d

243, 17 Syracuse L. Rev. 564 ......... dere 7

Sibron v. New York, 392 U.S. 40, 20 L. Ed.

2d DIT oer eeeeeeeereeeerrereeereeeers 10

Stanford v. Texas, 379 U.S. 476, 13 L. Ed. 2d 431 .

Page

Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664,

pi Re eas ote 10

United States ex rel. Petillo v. New Jersey, D.C.

N.J. 1975, 400 F. Supp. 1152, 1179, vacated

C.A. 3d, 1976, 541 F. 2d 275 ............. 7

United States v. Acosta, C.A. Sth, 1974, 501 F.

2d 1330, cert. den. 423 U.S. 891, 46 L. Ed. 2d

Be ale ics spe adbois MESS ARC Des 10

United States v. Bolton, C. A. Sh, 1972, 458 F. 2d

De Rh oki cw oRnv andes an obs Oboes 7

United States v. Burke, C.A. 2d, 1975, 517 F. 2d

See, Pe ts BS i ook s ae he cece “

United States v. Gillette, C.A. 2d, 1967, 383 F. 2d

is ED wo cb «Seve cu cauvbawdbewcdee can 7

United States v. Hittle, C.A. 10th, 1978, 575 F. 2d

MT Gu dd cs 0cocc¥esenbvteeenteheeee S

United States v. LaBerge, D.C. Md. 1967, 267 F.

Supp. 686, 692, n. 5... 2.2... cece eee 7

United States v. Roth, C.A. 7th, 1967, 371 F. 2d

$07 ee ee ee eo reer ee ee © 7

United States v. Upshaw, C.A. Sth, 1971, 448 F. 2d

ee ee

creer \ i

Page

Wong Sun v. United States, 371 U.S. 471, 9 L. Ed.

2d 441...... rides ys cecehsuassrananwes 10

STATUTES:

New York Penal Law, Section 165.44, subdivision | 2

28 U.S.C. §§ 1254 and 1257 ............. eee eee 2

PE BCA. GBI io iwc cece ccc cvercovenes 9

OTHER AUTHORITIES:

American Law Institute, ‘Model Code of Pre-

Arraignment Procedure, Proposed Official

Draft 1975,’ §SS290.3(1) ................ 7

Comment, ‘‘Challenging the Veracity of a Facially

Sufficient Search Warrant Affidavit: The

Truth is Relevant,’’ 1979, 24 S.D.L. Rev.

RAG; CS SEE Whe od vcece vcsesteatunneeaae 9

United States Constitution, Fourth Amendment ... 3,9

tie

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aaa te ms Moa 2. Py RN erm ol mers 7) eS (aS ctu oaOPF

UE PT OME ee AT LN pe My ee PP or gl cee ge .

"IN THE

SUPREME COURT OF THE UNITED STATES

. October Term 1983.

No._.

BEN SCHWARTZ,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEW YORK, AP-

PELLATE DIVISION, FIRST DEPARTMENT.

PETITION FOR CERTIORARI.

Opinion Below.

A copy of the opinions of the Courts below appears in

the appendix to this brief.

AAT ey

Jurisdiction.

The petitioner was convicted of the crime of criminal

possession of stolen property in the second degree under

Section 165.44, subdivision 1 of the New York Penal Law.

He was sentenced to 1-1/2 to 3 years imprisonment as a

predicate felony offender. He is presently over 71 years of

age.

The prosecution rested substantially upon a search war-

rant during which a seizure was made. The case was tried

and proceeded to the Appellate Division and to the New

York Court of Appeals, where it was remanded for an

evidentiary hearing on the question of perjury for false

statements by the sole police officer who supported the ap-

plication for a search warrant. An evidentiary hearing was

held before Honorable Hortense Gabel, a Justice of the

Supreme Court, New York County, who denied the mo-

tion to suppress despite the fact that there was palpable

falsity in the statements by the officer who applied for the

search warrant.

The order of the Appellate Division, First Department,

was rendered on October 18, 1983, affirming a judgment

of the Supreme Court, New York County, rendered the

4th day of May, 1979. On the 13th day of December, 1983,

Honorable Matthew J. Jasen, Associate Judge of the

Court of Appeals, issued a certificate denying leave to ap-

peal, a copy of which is annexed hereto and made a part

hereof.

The jurisdiction of this Court is invoked under 28

U.S.C. §§1254 and 1257. -

wl ion te ee ee» 2 ee

Constitutional and Statutory Provisions Involved.

The Fourth Amendment of the United States Constitu-

tion provides, in pertinent part:

**The right of the people to be secure in their per-

sons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation,

and particularly describing the place to be searched

and the person or things to be seized.”’

Statement of the Case—Introductory.

Since the issue presented to this Court is limited to the

Fourth Amendment question as to whether the State

Courts should have suppressed a search warrant because

of false statements deliberately and/or recklessly ar-

ticulated by the sole officer involved, we shall limit our

discussion of the facts accordingly.

The Evidence Relevant to this Petition.

On December 7, 1977, petitioner was arrested for receiv-

ing stolen property, in a loft at 39th Street in the Borough

of Manhattan, City and State of New York.

Following his arrest, a search warrant was applied for

and obtained, as a result of which a thorough search of the

aforesaid loft was conducted and a large amount of

allegedly stolen property was recovered.

The petitioner was subsequently charged with criminal

possession of stolen property in the first degree (three

.. =e i eee

counts); second degree (one count); and, third degree oad

count).*

The petitioner brought on a motion to controvert and

quash the search warrant by alleging that certain facts ad-

duced by the officer’s affidavit in support of the warrant

were palpably false and perjurious.

Justice Irving Lang, then sitting in the Supreme Court,

New York County, was assigned to hear the motion, but

he held that the affidavit in support of the motion to con-

trovert was insufficient to warrant a hearing and, accord-

ingly, a hearing was not conducted.

Subsequently, the petitioner pleaded guilty to the crime

of criminal possession of stolen property in the second

degree, namely the Fourth Count of the indictment, in full

satisfaction of the entire true bill. Under New York Law,

of course, the right to appeal was nevertheless preserved.

Ben Schwartz, the petitioner herein, was sentenced to an

indeterminate term of 1-1/2 to 3 years imprisonment, but

has been granted a stay of that judgment ever since and, at

the present time, as of the writing of this petition, he is still

at liberty.

On March 6, 1980, the Appeiiate Division of the

Supreme Court, First Department, affirmed the peti-

tioner’s conviction without opinion.

A leave to appeal to the Court of Appeals, however, was

granted, and that Court modified the order of the Ap-

pellate Division, holding that it was error for the Trial

"The Indictment Number in the Supreme Court, New York County,

was 5399/77.

NTE RO La eS Pr Pa

Court to have denied a hearing on petitioner’s motion to

controvert the search warrant, and it was remitted for such

a hearing.

That hearing was held on the 21st of December, 1981,

before Justice Hortense Gabel of the Supreme Court, New

York County, who upheld the validity of the search war-

rant. This is despite the fact that there was palpably false

information given by the sole officer who submitted an af-

fidavit in support of that warrant.

The police officer who submitted an affidavit was Of-

ficer Dominick Ragusa.

The thrust of Ragusa’s affidavit was to the effect that

the petitioner was conducting a ‘‘fencing’’ operation at a

particular premises.

It is not denied that Police Officer Ragusa gave false in-

formation in his affidavit in support of the warrant.

Among the allegations that were set forth in the police

officer’s affidavit in support of the warrant was that:

(a) ‘“‘That on December 7, 1977 at ap-

proximately 4:30 P.M. I personally observed An-

thony Zehler remove one carton containing mer-

chandise from a handtruck being pushed on the

street by a delivery person and run away with said

carton.” |

(b) ‘*That I followed said individual to 270 W.

39th St., Fifth Floor, Room No. 1 and I saw said

individual enter said premises with said merchan-

dise”’ (A61).

of the appendix used in the Court below.

' 6

ly admitted that he ‘‘did not actually see Mr. Zehler

physically walk into Room No. 1 on the Fifth Floor.” é

Secondly, he admitted that he did not actually see Mr. i

Zehler physically leave Room No. 1. Furthermore, he ad-

mitted that he had lost sight of Mr. Zehler when he went .

around the corner of a particular corridor (A70, A80).* - é

At the trial, however, and the hearing, the officer frank- 3

At the conclusion; of the hearing, the Court below ruled a

that the two questionable paragraphs were ‘‘inaccurate”’

(A97). The Court further ruled, however, that the ;

discrepancies that were committed in the “‘press for the .

warrant”’ were not ‘‘prejudicial to the defendant’’ (A98). :

The Court conducting the hearing, in its decision, :

stated, inter alia, as follows (A97-A98): ;

**The Court: In this case | have to tell you that I

think there are some differences in the warrant and

none of them are essential elements that would con-

travene any basic statement that the officer made in

applying for the warrant and the warrant itself.

**I believe that these are errors that could have

been made in the press of an application for this.

The error in no way prejudiced the defendant and I

therefore sustain the warrant.

**Mr. Panzer: Respectfully object.’’

“~

*Numerals in parentheses preceded by the prefix “‘A”’ refer to pages

Reasons For Granting The Writ.

The hearing court below found that false information

was in fact given by the officer who submitted an affidavit

to the magistrate in support of an application for a search

warrant. Under those circumstances, the motion to con-

trovert the warrant should have been granted. The false in-

formation referred to essential aspects of the warrant and,

in essence, revealed that the court officer in fact did not

know specifically which premises were to be searched and

what items were to be seized.

Even before the case of Franks v. Delaware, 438 U.S.

154, 98 S. Ct. 2674, 57 L.Ed.2d 667 (noted in 45

Brook.L.Rev. 391), it had been recognized that among the

grounds developed for suppressing or quashing a search

warrant was that the affidavit in support thereof con-

tained untruthful statements of fact (see United States v.

Bolton, C.A.9th, 1972, 458 F.2d 377, 378; United States v.

Upshaw, C.A.Sth, 1971, 448 F.2d1218, 1221, cert. den.

405 U.S. 936, 92 S.Ct. 970; United States v. Roth,

C.A.7th, 1967, 391 F.2d 507; United States v, Gillette,

C.A.2d, 1967, 383 F.2d 843, 848-849; King v. United

States, C.A.4th, 1960, 282 F.2d 398, 399-400; United

States ex. rel. Petillo v. New Jersey, D.C.N.J. 1975, 400 F.

Supp. 1152, 1179, vacated C.A.3d, 1976, $41 F.2d 275;

United States v. La Berge, D.C.Md 1967, 267 F.Supp.

686, 692 n. 5; People v. Alfinito, 16 N.Y.2d 181, 264

N.Y.S.2d 243, 17 Syracuse L. Rev. 564; American Law In-

stitute, ‘‘Model Code of Pre-Arraignment Procedure,

Proposed Official Draft 1975’, §§SS290.3[1}; and so

forth).

In 1978, in Franks v. Delaware, supra, the Supreme

Court of the United States affirmed that this is a basis for

suppressing evidence, though the holding is carefully

worded. The thrust of the opinion is that when there is

falsity intentionally or recklessly injected in an affidavit in

support of a warrant, suppression of the evidence seized is

mandated.

We need not tarry over the question of whether a hear-

ing was required, since a hearing was mandated and

granted in the case at bar. The Hearing Justice concluded

that the statements to which we have referred supra, were

in fact false and constituted misrepresentations.

It will be noted that the falsity of the statements involved

involve the essential ingredients of the warrant itself

because, had the officer told the truth, it would have

become obvious that he did not in fact see which premises

Mr. Zehler entered, nor what items were in fact in that

particular premises.

In other words, the officer could not say. for certain, or

with any degree of certainty, that the premises of Ben

Schwartz were those involved and, consequently, his false

statements misinformed the Magistrate, and a warrant was

issued under circumstances where had the truth been

known, there would have been insufficient specificity re-

quired to satisfy the Fourth Amendment requirements.

Nor are there good faith reasons for overlooking what

was said. There was no evidence that the officer involved

here acted in good faith. Nor were his misstatements merely

innocent or negligent.

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It is obvious that they were intentional and deliberate.

To say that they were uttered in the ‘‘press’’ to obtain a

search warrant is no answer. The Fourth Amendment is

very exacting and requires specificity as well as clear prob-

able cause.

We submit that the statements of the affiant were

material in the sense that without the false or reckless

misstateme: 's, the affidavit would not have been suffi-

cient to support a finding of probable cause (Franks v.

Delaware, supra, 438 U.S. at 171, 172, 98 S.Ct. at

2684-2685. See too, Comment, ‘‘Challenging the Veracity

of a Facially Sufficient Search Warrant Affidavit: The

Truth is Relevant,’’ 1979, 24S.D.L.Rev. 126, 136-138).

While there may be dissatisfaction with the exclusionary

rule in certain quarters, so long as it remains the law, there

can be no doubt that courts must suppress any evidence

obtained in violation of the Fourth Amendment (Mapp v.

Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081).

For example, it is still understood that a search warrant

must also be suppressed if the officers violated the federal

statute requiring them to knock and give notice of their

purpose before entering to make a search (18 U.S.C.A.

§3109; Miller v. United States, 357 U.S. 301, 2 L.Ed.2d

1332 [1958]; United States v. Burke, C.A.2d, 1975, 517

F.2d 377, 386, n. 13).

As a further example, it has also been held that

unrecorded sworn testimony of the affiant before the

Magistrate cannot be considered in determining probable

cause and consequently if the affidavit is either false or in-

sufficient, evidence must be suppressed (United States v.

Hittle, C.A. 10th, 1978, 575 F.2d 799).

rf q wW % - =e _ . ae . : aoa, : sm te oS

OE Se ae ee a ee ee TT TS ey eee on Eber reg Sp eee

Similarly, it has been held that suppression is also man-

dated, despite the fact that the Magistrate relied upon his

own knowledge of the informant and his experience with

the informant in another case to cure the defects in an af-

fidavit (United States v. Acosta, C.A. Sth, 1974, 501 F.2d

1330, cert. den. 423 U.S. 891, 46 L.Ed.2d 122).

We submit that in the case at bar the error was not merely

de minimis, but was substantial.

In Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73

L.Ed.2d 314 (1982), this Court held that no good faith ex-

ception has been recognized to date by this Court.

In any event, we maintain that a good faith exception

cannot even be considered in the case at bar, because there

is no excuse of good faith. The officer obviously misled

the Court, and did so recklessly and/or deliberately.

Furthermore, it is undisputed that a search cannot be

justified by what it produces (Wong Sun v. United States,

371 U.S. 471, 9 L.Ed.2d 441; Johnson v. United States,

333 U.S. 10, 92 L.Ed.2d 436; Sibron v. New York, 392

U.S. 40, 20 L.Ed.2d 917).

In fact, this Court has held that a search is either good

or badwhen it starts (Ker v. California, 374 U.S. 23, 10

L.Ed.2d 726).

In view of the false information given by the affiant

herein, the search warrant was void because it was not

founded upon probable cause. Without the false

statements, there was no specificity as to the place to be

searched or the items to be seized.

Officer Ragusa admitted that he gave false information

in support of the search warrant. In his affidavit he con-

ceded that he did not actually see Mr. Zehler enter a par-

ticular premises, nor could he determine what was in those

premises. In fact, he was not even sure they were the

premises of the petitioner, Mr. Schwartz (see Stanford v.

Texas, 379 U.S. 476, 13 L.Ed.2d 431; Berger v. New York,

388 U.S. 41, 18 L.Ed.2d 1040. See also, LO-JI/ sales, Inc.,

v. New York, 442 U.S. 319, 60 L.Ed.2d 920).

Furthermore, it has been held that probable cause for

the issuance of a search warrant necessarily implies not

simply that there are reasonable grounds to believe that

some violation of law exists, but that there is a violation in

respect to some property located on some premises or on

some person, each of which can be unmistakably iden-

tified so as to be capable of being particularly described in

the search warrant from the information in the affidavit

(see Lowery v. United States, C.C.A. 8th, 1947, 161 F.2d

30, cert. den. 331 U.S. 849, 91 L.Ed. 1858).

In view of the foregoing, we maintain that the warrant

was defective on these grounds as well.

CONCLUSION.

The petition for certiorari should be granted.

Respectfully submitted,

IRVING ANOLIK

A Member of the bar of this Court

Attorney for Petitioner

Certification.

I, IRVING ANOLIK, a member of the bar of this Court,

certify that a copy of the within petition was duly served,

by First Class Mail on the 10th day of February, 1984, on

the District Attorney, New York County, by depositing a

true copy thereof in a depository of the United States Post

Office, addressed to the District Attorney, New York

County, One Hogan Place, New York, New York, 10013.

Dated: New York, New York

February 10, 1984.

IRVING ANOLIK

Certification.

1, IRVING ANOLIK, a member of the bar of this Court,

certify that three copies of the within petition were duly

served by First Class Mail on the 2nd day of March, 1984,

on the District Attorney, New York County, by depositing

three true copies thereof in a depository of the United

States Post Office, addressed to the District Attorney,

New York County, One Hogan Place, New York, New

York, 10013.

Dated: New York, New York

March 2, 1984.

IRVING ANOLIK

- 2

‘i

la ae

Order of Appellate Division Dated March 6, 1980.

137 3

At a term of the Appellate Division of the :

Supreme Court held in and for the First Ju-

dicial Department in the County of New ;

York, on March 6, 1980. :

Present: J

Hon. Harold Birns :

Justice Presiding ‘

Arnold L. Fein :

David Ross i

Vincent A. Lupiano F

Max Bloom

Justices

: |

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

An appeal having been taken to this Court by the

defendant-appellant from the judgment of the Supreme

Court, New York County (Sklar, J.), rendered on May 4,

1979, convicting defendant of criminal possession of

stolen property in the second degree, and said appeal hav-

ing been argued by Mr. Joseph Panzer of counsel for the

appellant, and by Mr. Daniel J. Castleman of counsel for

the respondent; and due deliberation having been had

thereon,

It is unanimously ordered and adjudged that the judg-

ment so appealed from be and the same is hereby, in all

things, affirmed. The case is remitted to the Supreme

Court, New York County, for further proceedings pur-

suant to CPL 460.50(5).

Enter:

JOSEPH J. LUCCHI

Clerk.

Counsel for appellant is referred to §606.5, Rules of the

Appellate Division, First Department.

3a é i

Order of New York State Court of Appeals Dated May 19,

1980.

COURT OF APPEALS

Before: Hon. Bernard S. Meyer, Associate Judge.

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

against

BEN SCHWARTZ,

Defendant-Appellant.

1, BERNARD S. MEYER, ‘Associate Judge of the Court of

Appeals of the State of New York, do hereby certify that

in the record and proceedings herein* questions of law are :

involved which ought to be reviewed by the Court of Ap- é

peals and pursuant to §460.20 of the Criminal Proceedure 3

Law, it is therefore

ORDERED that permission be and it is hereby granted to

the above-named appellant to appeal to the Court of Ap-

Dated at New York, New York

May 19, 1980

‘BERNARD S. MEYER

Associate Judge —

‘f

“4

Order and Opinion of the New York State

Court of Appeals.

MEMORANDA 1063

SUMMARY

APPEAL, by permission of an Associate Judge of the

Court of Appeals, from an order of the Appellate Division

of the Supreme Court in the First Judicial Department,

entered March 6, 1980, which affirmed a judgment of the

Supreme Court (STANLEY L. SKLAR, J.), rendered in New

York County, convicting defendant, upon his plea of guil-

ty, of criminal possession of stolen property in the second

degree. Defendant and two other men were arrested after

police officers observed one of the men steal a carton from

a hand truck and the officers followed him to a fifth floor

room of a certain building where defendant was

discovered. Several hours later, one of the officers return-

ed to the room after obtaining a search warrant and

discovered a large quantity of stolen merchandise. Defen-

dant moved to controvert the search warrant on the

grounds that probable cause did not exist to support its is-

suance and that it was illegally obtained, alleging that the

police officers searched the premises and seized certain

merchandise before obtaining the warrant. The court

denied defendant’s motion without a hearing. Defendant

elected to go to trial but during the People’s direct case, he

entered a plea of guilty to criminal possession of stolen

property in the second degree in satisfaction of the entire

indictment. In the Court of Appeals, defendant argued

that the court erred in not granting an evidentiary hearing

on his motion to controvert the search warrant.

People v. Schwartz, 74 AD2d 753, modified.

bes

HEADNOTE

Crimes—Search Warrant

An order of the Appellate Division, which affirmed a

judgment convicting defendant, upon his plea of guilty, of

criminal possession of stolen property in the second

degree, is modified, and the matter remitted to Supreme .

Court to hold a hearing. On this record, it was error to

refuse the application for a hearing on defendant’s motion

to controvert the search warrant, which he contended was

illegally obtained and was issued without probable cause.

APPEARANCES OF COUNSEL

Joseph Panzer for appellant.

Robert M. Morgenthau, District Attorney (Daniel J.

Castleman and Vivian Berger of counsel), for respondent.

1064 52NEW YORK REPORTS, 2d SERIES

OPINION OF THE COURT

MEMORANDUM

On the record here, it was error to refuse to grant the

application for a hearing on defendant’s motion to con-

: trovert the search warrant. Therefore the order of the Ap-

pellate Division should be modified and the matter remit-

ted to Supreme Court, New York County, to hold a hear-

ing and determine the motion anew. In the event defend-

ant prevails, the plea should be vacated and appropriate

who prevail, the judgment should be amended to reflect

the additional proceedings that have taken place.

a! Oy tad . 8 es By adie be 6

Tend ove tales ~y OS Mabe ne Vis

ef? 6a

Chief Judge COOKE and Judges JASEN, GABRIELLI,

JONES, WACHTLER, FUCHSBERG and MEYER concur.

Order modified and case remitted to Supreme Court,

New York County, for further proceedings in accordance

with the memorandum herein and, as so modified, af-

firmed.

Certificate Denying Leave to Appeal to the Court of

Appeals.

COURT OF APPEALS,

STATE OF NEW YORK.

Before: Hon. Matthew J. Jasen, Associate Judge.

THE PEOPLE OF THE STATE OF NEW YORK

Respondent,

against

BEN SCHWARTZ,

Appellant.

1, MATTHEW J. JASEN, Associate Judge of the Court of

Appeals of the State of New York, do hereby certify that,

upon application timely made by the above-named appel-

lant for a certificate pursuant to CPL 460.20 and upon the

record and proceedings herein* there is no question of law

presented which ought to be reviewed by the Court of Ap- ;

peals and permission to appeal is hereby denied. .

Dated at Albany, New York

~ December 13, 1983.

MATTHEW J. JASEN |

Associate Judge |

Affidavit of P. O. Dominick Ragusa.

CRIMINAL COURT OF THE CITY OF NEW YORK,

COUNTY OF NEW YORK.

State of New York

County of N.Y.

P. O. Dominick Ragusa 26789 Mts. Acu being duly

sworn, deposes and says:

1. lama police officer of the N. Y. City Police Dept.

2. I have information based upon my observation of

the acts of one Anthony Zephier, of 1695 Nelson Ave.

Bronx, N.Y. and subsequent conversations with said An-

thony Zephier, that a fencing operation is being conducted

by Benjamin Schwartz, at 270 W. 39 St., N.Y., 5th Floor,

Room 1, and that stolen property is stored at the said

premises in boxes, on racks, shelves, packages, storage

areas, under counters, in desk drawers and behind

counters.

a) that on December 7, '977, at approx. 4:30 P.M., I

personally observed Anthony Zephier remove one carton

containing merchandise from a hand truck being pushed

on the street by a delivery person, and run away with said

carton.

b) that I followed said individual to 270 W. 39 St., Sth

Floor, Room No. | and saw said individual enter said

premises with said merchandise.

c) that I waited near the elevator door on the Sth Floor

and saw said individual leave Room No. | without the car-

ton.

d) that I stopped said individual by the elevator, iden-

tified myself as a police officer and placed him under ar-

rest for Petty Larceny PL 155.25 and Criminal Possession

of stolen property, PL 165.45.

e) that I advised said individual of his Miranda rights

and asked him what he did with the carton, and said in-

dividual replied that he delivered the carton to ‘‘Benny’”’ in

return for a sum of U.S. currency.

f) that I entered Room No. | and immediately observed

the aforementioned carton, now empty, on the counter

next to an individual who I later determined to be the said

‘*Benny.”’ (the defendant Benjamin Schwartz) and im-

mediately next to the empty carton I observed the shipping

label.

g) that | asked defendant ‘‘Where is Benny?’’ and de-

fendant said ‘‘I don’t know who he is.”’

h) that I identified myself as a police officer and asked

defendant what his name was and he said ‘‘I’m Benny.”’

i) that I placed the defendant under arrest for CPSP 3rd

and advised him of his Miranda rights.

j) that I entered the area behind the counter in said

premises to determine whether any other persons were pre-

sent inside said premises.

k) that, accompanied by the defendant, | observed a

large quantity of packages, cartons, stored in the premises

10a

and also stereos, coats, watches, ladies hand bags,

sunglasses, belts, sweaters, various ladies and men’s ap-

parel with tags, cigaret lighters, dishes.

1) that I asked the defendant whether he had any

receipts, bills of lading, invoices, etc. to prove ownership

of the above described merchandise, and the defendant

said he didn’t have any.

m) that an individual, later identified as Percell

Hopkins, walked into said Room No. | carrying a carton

with the shipping label ripped off.

n) that this individual, Percell Hopkins, took flight

upon entering in the room. I chased and apprehended said

individual at which time he informed me that the packages

he was carrying was found by him on the street.

Hopkins a person known to me and the unit to which I am

assigned * * * and rack and package thief, entered Room

‘.

3. Based upon the foregoing reliable information and

upon my personal knowledge there is probable cause to

believe that such property specified above is stolen prop-

erty and may be found in the possession of said Benjamin

Schwartz or at premises 270 W. 39 St., 5th Floor, Room

No. I.

WHEREFORE, J respectfully request that the court issue

a warrant and order of seizure, in the form annexed,

authorizing the search of premises at 270 W. 39 St. Sth

Floor, Room |, including boxes, racks, shelves, packages,

desk drawers therein, and directing that if such property

lla ys

or evidence or any part thereof be found that it be seized

and brought before the court; together with such other

and further relief that the court may deem proper.

No previous application in this matter has been made in

this or any other court or to any other judge, justice or

magistrate.

Police Officer Shield Rank Command

Sworn to before me

Dec. 7, 1977

; : Ve ee

;

12a

Search Warrant.

CRIMINAL COURT OF THE CITY OF NEW YORK,

COUNTY OF N. Y.

In the name of the People of the State of New York:

To any police officer of the City of New York,

Proof by affidavit (or deposition) having been made this

day before me by P.O. Dominick Ragusa MTS ACU that

there is probable cause for believing that certain property

to wit: packages, cartons, stored on the premises, also

stereos, coats, watches, dresses, ladies handbags, sun

glasses, belts, sweaters, various ladies and men’s apparel

with tags, cigaret lighters and dishes.

You are therefore commanded between 6:00 A.M. and

9:00 P.M. or to make an immediate search of 270 W. 39

St. 5th Floor Room No. | occupied by Benjamin Schwartz

and if you find any such property or any part thereof to

bring it before me at Part A 29 at 100 Centre Street, New

York City.

Dated at New York City

Dec. 8, 1977

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.