Petition for Writ of Certiorari — Arnone v. New York

. SWRARY.

"WME COURT. Usa.

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Office-Supreme Court, U.S.

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\ ocr. 24 1066

IN THE

_ Supe Court of sheet nited States

.. OCTOBER TERM, 1966

| ares

SALVATORE ARN ONE and an TONIO

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A cers

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tm PEOPLE OF THE STATE oF NEW YORK,

Respondent.

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3 COURT. OF NEW ene

JAFFE and FELDMAN

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Evucene Fetpman .

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PINTO; ie

‘Petitioners,

PETITION. FORA WRIT OF CERTIORARI TO THE APPELLATE

_ DIVISION, SECOND DBPARTMENT OF THE SUPREME -

Attorneys for Petitioners

N. Y. 10007

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©. . Opinion Below .....0:...0csseecacceeeteaeTeceees Re oe.

Jurisdiction ....2).<.0+.0+¢000see- Citiaciene aoe ea _ Ae

“Questions Presented bates pbs ba¥peyhved een tecs eee he

Constitutional and Statutory Provisions Involved .. i ae wis :

-@ \ d : ae : ; Ps i . ~ ;

a Statement ae PED Joceteuenees dean vecvese d%e Pe 3 ee

‘Prior Proceedings . thtes rereere earwdk we ae

‘ . ; s ieee os : : ;

Evidence Presented at Hearing on 1 Motion to ‘Sitp- Sea

Basa cece vuteaavets igh eben set eneeeceeenen sees Te pict RE Se, re

“Detective. Sil Macauley . ‘ses ire irs a pres ee, A Se

Reasons for Allowance of Wirt 3 RSs eR wes

Pap has eo INS

Coouusi0x EE PTS fittheeess BEE OPE eer | roe

a e : Ee S58 , aa x

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Anita A Opinion of Conroy, J., Denying Motion’ ane Soe

a ‘to Suppress sae seme Tag py NN ees cee

_ g&ermnvix B—Order of Affirmance of Appellate Di. *

visiom (Peo. v- ‘Arsome) «1-02 9--5¢i-tscnys ies .°. a

: APPENDIX C—Order of Affirmance of Appellate Di- ; ee es

» vision (Peo. v. han A Pees med a cstage “AG.

7 Appenorx D—Decision of Appellate Division ..... Saks eas ° | y

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‘ApPENDIX E—Certificate Denying Leave to Appeal. ee ee

ho Dateet Apel 5 eet ba Ae Anes es A10 / i

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‘TABLE OF CASES crrep ee

AR; : ae PAGE —

Aigellacy. ‘Texas, 378 U.S. 108 (1964) «<2. 6, 18, 19, 20 °

_Bollenbach v. eaten ets 607 (1945) :... 10.

(

' Brown v. United'S CCA 3rd, 1936), 83 F. 24 383.8

| ahoma, — - Okla —, 280'P. ‘va 749 (1955); | “9 |

ine v. United States (6th Cir, 1953) 207. F. 2d 324 ee

Giordene]lo v. United. States, 357 US. 480 (1957 ey 19

_ Hatchet v. State, 208 Tenn. 399. (1961) Bee 9.

Johnson v. United States, 333'U.8. 10 (1948) ..2.....19,20 -

) Keiningham v.. United States (D.C. Cir.: 1960) 287

F, 2d: 126 vapeteecheqeneleteseespepeeceacdbesed” 8,14

‘Marron ¥. United States, 275 U.S. 192 (1927) ...... 12.

Matter of erent Bros., — C. 1918) 254 Fed. -

Oe Og re a aa ek a eke s Fae GR eS 18 .

q McDonald v. United States, 335 U.S. 451 (1948) . 8,11

Be Nathandon v. United States, 290 U.S. 41 (1933) . 1B 17,18

People v. Estrada, 44 Cal. Rptr. 165 (1965) ..... vere 9

. People v. Smith, 20 Til 2d 345 (1960) Sevececns ee eee 9

| Gasser v. United States (5th Cir.-1955) 227 F. 24358: 8 |

_. Sgro v. United States, 287 U:S. 206 (1932) ......... 13,18

' Stanford v. Texas, 379 U.S. 431 (1965) ....... res 12, %

* State v. Daniels, 46'N.J. 428 (1966) ....... tila ee

Steele v. United States No. 1, 267 U.S. 498 (1924) . 7, 8,9,

‘ ha 12, 15 ©

United States v. Berkouskas (M. D. Pa., 1930): 38 F.

| gee ees eo ieer pe ee vee oS, 18,15

‘United States v. ‘Contes (D.C. 1959) 170 F. Supp. 26 8, 10

. United States v. Evans (6th Cir. 1933) 320". 2d 482 14

United States v, Hinton (7 Cir. 1955) 219 F.2d 324 . 12

ee United States v. Joseph (E. D. Pa. 1959), 174 F. Supp.

S ‘

fe aati ae, Ss ee, . 7. PAGES

f |... United States v. Lefkowitz, 285 U.S. 452 (1932) .. 2,

oe + United States. v. Pisano De.y. 1961), 191. F yee ter

+ e Supp. G6 ....5 Cc ome wer eccrserces cece ccseenese 8 se

United States v. Poppitt (WARP. Dal 1964) 227 . eee

ee te yee et er Peer TTT CTP r ee ere 15

United States v. Santore (2nd Cir. 1960) 290 'F. od x

lo, '. . Bl, Cert. den.,.365 U.S: 834 :........, Jeiehe eth 14;15 ..

4 _ +: United States v. Thotnas (ND. Cal. 1963), 216 Wee.

BO eS ee SE ee sccccepeveciesivececsetets tanya 8:

“*' United States v. Wihinier (D.C. W.D. Wash., 1922),

es 2 Soe eee ee een a 15

. United States ex rel. Sunrise Products Co. v. Boren

(De. EDN. 1929), 33 F. 2d 982 « joe ae

oo Ber : ou ‘Statutes eo oe “Ay nee

f: 98 U.S.C. §1257(3) Seiki NT Tar tees penne Cae. ©

4 Sh New York Code of Crim. Proe. , $818. (eteésceds ee.

pe a Fourth Amendment vest eet deb eet etese see eenes 12 8,4 I |

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_ Supreme eas, of tthe Mnited States

No.

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" SALVATORE Adwows and Axtéxio Pinto, |

Petitioners, :

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‘Tae Pore’ OF THE Pees | OF. New You,

October Tet, ne fee RN SS

Sosa : Se st “Respondent.

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x PETITION FOR ‘A WRIT OF 7 caarridinadis 4 TO THe

_COURT OF APPEALS OF THE STATE OF NEW YORK |

The petitioners pray for a writ of certiorari to 1 Teview

oe _ the judgment of the Appellate Division, Second Department iS

_ of the Supreme Court in the State.of New. York, erttered: in

7 the above entitled case on. os 18, 1966 Cor - 24. —,.

: 270 N.Y.8. 2d 381). bathe

. no Opinion Below

The opinion of Hloticrable J oseph M. Coitrey, Judge of

the Supreme Court of the State of New York, dated April }

- 29, 1963, denying petitioners’ motion to vacate a search

warrant and to suppréss the evidence seized: thereunder i b>

unreported and is orn hereto, infra, at page Al.

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rie A ie Jurisdiction

_ Jurisdiction of this Court is invoked hie Title 28, ¢

United ‘States: Code, ‘Section 1257 (3). An order, without -

opinion, denying petitioners’ motion to vacate. ‘the-search - :

warrant and to suppress certain evidence seized thereunder

pursuant to’New York Code of Criminal Procedure, Section

_813-c was entered on April 18, 1966, by the Appellate Divi-

sion, | Second Department. of the Supreme Court of the: -

9 State. of New York.. Leave to appeal to the Court of Ap- .

\peals of the State of New ‘York was denied by. the Honor-

able Adrian -. Burke on July 1, 1966: Application for an

extension of time in which to file this petition from Septem-

ber 28, 1966 up to and including October 26, 1966 “was

‘granted i in an Order-isgued by Mr.. J ustice Harlan, dated °

wh, sonsinal 23, 1966. . Mee

: oh i oe Beene Presented

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‘, Whether ‘afailure. of a seargh warrant to describe the

particular premises which was searched constitutes a dep- :

-rivation of the-protection of the Fourth Amendment to the.

United States Constitution? ;

“2, Whether there are dicate governing Wee or oan

_ tion of the place to be searched described in the search war-

rant shfficient to’ meet the requirements of the Fourth

Amendment to the United States Constitution?

3. Whether a seargh i is valid under the Fourth Amend-

: ment to the United States. Constitution which is based upbn - |

- alleged probable cause obtained subsequent to the issuance -

of a search werrant ang, without knowledge of: any Court

= J aie | the ite ‘ie eeeaaed cause??? |

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courier wees and Statutory Provisions Involved =.

: i, This: * Case UR the Fourth Amendmenf te the

_ United States Constitution. =, " 3

2. Section 813-c of the Code of Criniinal Procedure of.

“the State of New York is also involved:

; Szorion 813-0 OF THE é OF Cinietis Procepune . :

A person claiming to"be aggrieved by an unlawful ,

~ séareh and seizure and having reasonable grounds

_ to believe that the property, paper. -or things, here- ©

‘imafter referred to as property, claimed to haye been

| yulawfully obtained may be used as evidence against

- him in a criminal proceeding, may move for the re- ¢ -

turn of such property or for the suppression of its

- use as evidence. The court shall hear. eviderice on

any issue of fact necessary to the determination of

‘the motion.’ ¢

If the motion if granted, the property ‘shall be

restored unless otherwise subject tlawful detention,

and in any event it shall not be mdmissible as evi-

dence in any — processing against the moving

perty.. - .

If. the motion is denied, the order deasiag such.”

may ‘be reviewed on appeal from a: judgment of con-..

-_viction notwithstanding the fact that such judgment | A

of conviction 1 is sisoaecared =p a plea-of guilty.

vet Statement Pa |

Prior Proceedings iat

. Petitioner's were charged i in a four count indictment by,

a Grand Jury in Queens County in the State of N’ ew York

ee the crimes of operating a policy: business, i in. knowingly

keeping a place. for. receiving written records of more than .

fas ee 3

oe

a

knowingly .receiving in one day written records:of more

than one hundred policy wagers; keeping a place to be used

~for policy playing; and possession of policy slips .(R. 5-7).

On April 16, 1963, petitioners filed a Notice of Motion to

controvert a search -warrant obtained herein and-to sup-

- press evidence obtained thereunder in violation of théir -

rights under the Fourth Amendment to the United States

. Constitution (R. 32, 33). A hearing on the aforesaid motion

- was held before Justice Joseph M. Conroy of the Supreme

Court of the State of New York, ‘on April 16, 1963 (R. 40- .

' 57). The motion was denied by opinion and order dated

- April 29, 1963 (R. 62-64 reprinted Al, ‘mfra).

Thereafter petitioners pleaded guilty to the crime .of at-

tempting”to commit the felony of operating a policy busi-

ness in violation of Seetion 974b of the Penal Law, of the °

State of New York, without in any way, prdjudicing their

‘rights under Section 813-c of the New York Code of Crim-

inal Procedure. to resist upon appeal the aforesaid inter-

‘mediate. order of Justice J osenh M. _ Conroy sated a

~ 29, 1963 (R. 15-22). :

| Petitioner Salvatore Arnone was suihiisend toa term of

one year, three tonths to five years in the State Prison.

and Petitioner ‘Antonio Pinto was sentenved to one year,

. _ three months’ to two years in the State Prison with. é&ecu-

tion of both sentdhees stayed during good behavior (R. 31).

On appeal to the Appellate Division of the ‘Supreme

: “Court of the State of New York in the Second Judicial De-

: . partment, the conviction was affirmed without opinion on -

~ April 18, 1966. Leave to appeal to the Court of Appeals

- in the State of New York was denied by Hon. Adrian | oe

Burke, Associate J oo on J uly, 1, —

a hundred plays or bets; operating a policy business in

a

5 : . os bes °

: Evens Presented at aces on Motion to Suppress °

Detective John Macauley:

Detective John Macauley of the New York City: Police

Department testified that he submitted an affidavit.to Judge -

Francis X. O’Brien on October 26, 1962, in support of an’ *

_. application for a search warrant to search premises 40-66

‘97th Street, Queens, ‘‘a basement apartment thereat”’ (R.

42-43), A copy of the affidavit which was marked as peti-

- tioner’s Exhibit “A” in evidence (R. qp!-59) described the: -.

- premises to be searched as ‘‘the first floor rear apartment’’

**believed: to be occupied by Frances Arnone’’. No other .

officer or other witness submitted any additional affidavits

‘<in support of the appligation-for the search warrant, nor -

was there any oral testimony offered in support of the

° application for the warrant (R. 43, 44). The search war-

‘rant, issued by Judge O’Brien on October 26, 1965, -(de-

fendants’ Exhibit ““B’? in evidence) (R. 60), also described

. the premises to be searched’as the first floor rear apartment.

Detective Macauley testified that. prior to making his..

application for the search warrant he had, on October 23,

1962; approached an unknown male on 94th Street, and 2nd -

| Avenue in the Borough of Manhattan, at about 1:15 P.M.

_.and had placed a bet which was accepted by this unknown ©

"male, who placed the money given in his pocket and placed

the slip given iti a brown paper bag (R. 45, 46). Subsequent

thereto he saw, this unknown male have numerous conversa-

tions with other males and females and thereupon walk to

92nd Street and York Avenue and meet with petitiéner

. Pinta (R. 46), who received the brown paper bag from this .

unknown male (R. 46).. Pinto then entered an automobile ©

and drove .ta ‘the vicinity of 40-66 97 ” Street, Corons (B.

‘ Pat sd e . - . 7

. , - 4 e : “ ; .

47) which premises “he entered whife carrying a seine

and a paper. bag (R. 47-48). Similar observations by Detec-

tive Macauley were ‘ade on the 24th, _ and 26th of

October (B. 48).

The } premises at 40-66 97th Street, Corona, prsnaen con-

sisted of .a four-family house (R. 48). Detective Macauley

did not see what portion of these premises petitioner Pinto

entered until his observations on October 25th when he

- saw him go ‘‘to the apartment of the rear of the 1st floor’’

(R. 48). Thereafter, on October 26, he obtained the ‘search

‘ warrant described above authorizing him to search the first

floor rear apartment of these premises. On that day. he . .

testified he saw petitioner Pinto meet this unknown male

: at 92nd Street and York Avenue and drive.to 40-66 97th

- Street and enter the premises. He was directly behind.

_ petitioner and saw him walk the length of the hall, make a

ft hand turn and enter a door there which the detective,

‘chet learned led downstairs to the basement apart

| ent (R. 49, 50, 54). —There-was a direct énirance"to this

: basement apartment through the rear yard (R. 54). Detec- -

tive Macauley kriocked on the door which he had seen peti-.

' tioner Pinto enter, announced that he had a search warrant

_ and upon receiving no response opened the door,which was

_ elosed but not locked, proceeded to the basement apartment |

and conducted a search ( R. 50,53). He did not conduct 2 a

search of the first floor rear apartment (R. 50). Detective

_ Macauley admitted that he entered thé basemerft apart©

- ment and conducted a search thereof not_because he had

- geen a crime committed in his presence but for the parpase

ae: Ln the search warrant ois 50, rans

Pe Oe a

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Reasons for Allowance of Writ - |

. 1. The denial: of this motion to suppress is an excellent

- example of the inadequate protection. afforded at both. the

federal and state judicial levels of the guarantee, of the? .

Fourth Amendment that no search warrant shall Se

_ without “particularly describing the place to be searched.”? :

Despite the constitutional prerequisite making necessary _ |

- specificity in. describing the premises for which ‘a: valid . [rN

search warrant may issue, this Court has in ‘one instance ;

considered a case in: which this requirement.was involved. .

The standards delineated in Steele v. United States, No. 1,

.267 U.S. 498 (1924), have been. frequently relied. upon not ~ *

only within the limited context of the factual questions |

raised by the ‘warrant therein but also in cases ‘similar to ef

- this one where the factual ‘situation isvastly disparate.

» While the warrant-in Steele. was was challenged as being too

general in its description of the premises. to be searched,

the warrant here did not’ describe the premises searched

- in executing, the warrant. ee ae

The Steele case involved the validity of a warrant which

sought the right to search any buildings. or rooms ‘con-—

. nected or used in connection with .a commereial garage

where the entire .premises wag leased by, defendantt.- In

holding this description constitational}y ae this

Court. said: =.” ae ,

ees “Tt. is - enough: if the ekg ‘Is such: that. the .

. officer. with a. search warrant can, with reasonable.

effort, ascertain and emery the Place. intended’’

* (267 U.S. at p. 503). ee

aS

rae Tt j is petitioners’ conshinniiaih that, in the forty-odd years,

_ which’ have elapsed since Steéle, lower courts on’'the whole, |

when faced with the constitutional sufficiency of premises

‘descriptions i in search warrants, have tended: to érode tee

effectiveness of the constitutional requirement of particu-

larity of ‘destPiption and thus have threatened ‘the right :

of the citizen to privacy in home. or business. McDonald y. —~

United States, 335 U.S. 451 (1948) ; Brown v. United States

(CCA 3rd,.- 1936), 83 F. 2d $83,

__Broadly-speaking, the ‘cases in which descriptions of |

‘premises in search warrants have been challenged fall inta

two basic eategories :.

rs Those in which the warrant or. the execution thereof

is challenged as describing premises-too generally and

broadly (eg: ef. Sasser v. United States,227 F. 2d 358

"(5th Cir. 1955) ; Fine.v. United States; 207 F. 2d 324 (6th

. Cir. 1953) cert. denied 346 U.S. 923, where the description __

held adequate with United States v. Thomas, 216 F. Supp. —

942° (N.D. Cal. 1963) where ‘the description was held not

4:54. tO justify searching another billing on the eae:

2, “Those in whieh the warrant. ade not ila ‘te

premises which4n fact were searched (e.g. ef. United States. as

v. Joseph, 174 F. Supp. 539 (E.D. Pa. 1959) ; United States

y. Pisano, 191 F. Supp. 861 (S.D.N.Y. 1961) ; United States

_y. Contee, 170 F. Supp. 26 (D.C. 1959) where search of

premises other than those described in. warrant held harm-

less’ due to minor error and with Keimingham v United

States, 287 F. 2a 126 (D.C. Cir. 1960) ; United States v.

Barkouskas,; 38 F. 2d 837 (M.D. Pa. 1930) where product 7

of such a ‘sonnel was suppressed as evidence,

ey Cee nn a

~

* eyes

‘Judicial holdings on the state level réveal a more con-

| sistent tendency on the part of the courts to uphold war-

rants broadly ‘worded | or executions at variance with ' ‘the.

» description i in the warrant. E.g. Peopie v. Smith, 20 Til. 2a

‘345 (1960) (confusion over apartment designation held

unimportant), Davis v. Oklahoma, — Okla; — 280 P. 2d -

749 (1955) (although description of premises in warrant 7

not complete, search valid) ;.Hatchett v. State, 208 Tenn.

399 (1961): (inaccurate description of location of prem-

_ ises held harmless); State v. Daniels, 46 N.J. 428 (1966)

(error in street address and in nature of business ¢on-

ducted at prengiges held harmless). People y. ‘Estrada, 44

Cal. Rptr. 165 (1965) a apartment number in ‘warrant Yen

held not fatal). :

In the cited cases the courts hase: articulated an ipalina,

_ tion to sustain the search warrant so long.as in its execu-

tion the law enforcement officer did hot | in fact intrude:

upon an innocent party.

In reaching the sailed that . buch gies: ‘ties

such ‘warrants are valid ‘afider -the Fourth. Amendment

the courts have in most, instances expressly relied upon the

“authority”? of this Court’s holding i in Steele or have em-

ployed reasoning identical to that used in Steele without -

specific reliance upon it. 3

Petitioners do’ not sibeient re distingpish the facts in.

volved in the cited authorities from those in the case at

bar, although i in many instances there ; are important techni- :

cal distinctions. Rather petitioners contend that these hold-—

- ings—similar to the one at issue here—supply graphic evi-

_ dence’ that it is clearly time for this Court to consider

&

afresh the language of the Fourth Amsdadendet with refer-_ .-

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4

"ence to particularity of description and.to supply guide-

lines which will halt the-tendency of lower courts to allow |

‘and indeed encourage careless and incomplete police work —

‘at the expense. of the citizen 5 right to his privacy.

hi Therefore mere labeling yariance between warrant and

- éxecution. thereof as * téchnical’ is to avoid grappling with

i the vital question of allowing such variance to.stand. There

is no question that these variances create unwarranted in-

oe trusion ‘upon erstyca. s right of privacy.

*.4

for punishing crime without heeding the mode for

-which it is accomplished.’’? Bollenbach v. oe

States, (1945) $26 U.S. 607, 614.

NN; The question is er whether. there i is or is not an yey

ment ‘‘A’’-as the court reasoned 1 in Contee. or whether the

- Officers were justified in mistaking No. 31 for No. 35 as in

Daniels or whether there is a first floor rear apartment in

the instant case. The question is whether this Court should :

allow warrants of this nature to stand and, i in turn, whether ©

the standard, as applied in some of our State Courts and.

in some of our Circuits, affords adequate protection to a.

person who. ‘resides in Apartment “A”? or whose store is +

~ located ‘at No. 31 or who occupies the first floor rear apart-

ment: In this case the. officer executed the warrant, ex- *

‘ hibiting no hesitation about doing so, after discovering that -

* he did not want to search the first floor’ rear apartment but

_ rather wanted to descend a flight of stairs, the entrance to .

. which was at the left of the first\ floor and searched a base-

ment apartment. A search of the basement apartment oc--

was the residence of the petitioners and not of. others. The 7

curred herein. It matters not that the basement apartment ©

i . TS pee ae ba ieitalat at a ELON EN RL RNE SENET 3 LF SITE EIEIO DG IO ERE DY OO GI Hb LIEN IN OOS

‘© 4A11 law is technical if viewed solely. een concern |

2

ne

fact that the delliibadnaae: and we submiit, ie legal: ‘be-

havior of the officer did not create a:mere unfortunate situa-

tion does not alter the fact that the police officer. proceeded

_ without legal justification: into the basement apartment and

took an unnecessary chance of disturbing the Privacy of

unknown persons. :

: The time has come to. dislontigs effectively ke an atti- :

tude on the part of law enforcement officials. \ It is ‘clearly

worth noting that i in the case cited and in the aany others —

an this area carelessly drawn warrants have been upheld

where the.suspected crime consisted of liquor and gambling. ~

- law violations. As was stated by Mr. J ustice J ackson in

McDonald v. United Statés, supra, page 459: :

“While I should be human. enough to anny the let-

ster of the law with some indulgence to officers acting —

- to deal with threats or crimes of violence which en- -

danger life or security, it is notable that few of the

_. searches found by this court to.be unlawful dealt

- with that category of crime. Almost without excep-

3 tion, the overzeal was in suppressing acts not malum -

in se but only malum prohibitum.~ While the enter- |

‘prise of parting fools from their money by the ‘‘num-

_bers’’ lottery is one that. ought to be suppressed, I

do not think its suppression is more important to ©

- society than the security of the people against unrea- ae

) sonable searches and seizures.”"* . 0 RS) es a

"There are disputes. among the various: ‘idee con- .

cerning the interpretation of Steele over. the past forty

years since its decision.. The sophistication of police officers

and the sophistry of some courts has twisted the specificity * .

" . requirements of the description of.the premises sought. to, ct a

__be searched of the Fourth Amendment to the United. States, sh

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- IRL DERN Ae ne BREE IE IIE Ue Nd EIN IAD a RE OO eI PONT PSE REY, OHI WN A ONT MOD ve e ¥

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- Constitution. This court has refused to validate a “‘gen-

eral’? search wérrant (Stanford v. Texas, 379 ‘U.S. 431

(1965) and Marron v. United States, 275 U.S. 192 (1927)...

Particularly in: our urban society, where so many people

‘reside in multiple dwellings the authority to enter any and -

all premises, once inside the multiple dwelling, must be cur-

tailed. To that end, guidance is necessary for law enforce-

- ment officers and for the courts grantirig this authority:

7) Despite the clear trend eiued allowing search war-- |

rants to stand: where premise descriptions differ from the:

premises actually searched, there i is indication of a certain

conflict among the lower courts where, as here the premises

| _ are residential and‘more than one family may residé therein.

» ’. This Court has never considered what standards should gov- __

-. ern in this situation. In Steele where defendant was the

‘sole owner of. the premises broadly described in-the war-

rant there was little likelihood that a wide search would

impinge upon the privacy of persons totally. ‘uninvolved :

with the suspected crime fox which the warrant was: sought

and issued. However, where the premises involved are

multiple dwellings ‘and failure to specifically. describe the

premises to be searched i is more likely to threaten the secur- if

r

i ity of other tenants in the privacy of:their homes, some lo

courts have vacated ‘warrants when they: failed to describe

‘with adequate particularity ‘theispecific apartment to be ;

searched. For exdinple, in United States v. Hinton, °219 -..

+2 9

F', 2d 324 (7 Cir. 1955) the court invalidated a warrant which

authorized a search of an entire thrée-story apartment ~

‘house, including its basement, because ‘the affidavit. upon _

~.. which’ the warrant was based, failed to show justification Fans

"e for such a wide-ranging sipsses pointing « out at page 326.

es WAN ge sisie

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. the fact that no havin was dons would not: rae)

teks a warrant invalid beeause of ‘its. failure to es Raed ]

fila ‘describe the. Bleop to be searched,”

Similar concern, ‘for the effect on ‘the rights of otheri s was -

voiced by the. court in United. States” v. ‘Barkouskas, 38 F.

. Supp. 837 (M.D. Pa: 1930) where the warrant described. the

_ two story. premises to be seArched as a bar and drinking -

', rooms respectively and, upon execution, it was learned that

_ the second floor was, in fact, occupied by persons other than. .

defendant: Although upon being ’so advised the officer only:

searched the first floor where he seized whisky | illegally

Ris possessed by the defendant, the court nonetheless. granted

the motion to vacate and Beja: reasoning. ake agit

‘¢. .. . We were not concerned with that which ew a

.’ -péned after. the search warrant. was issaed.’ We are

" oncerned only with the search warrant itself and

_ the. authority it garg the officer to whom it was di- — ye

--. reeted. It gave him. authority-to search the house

|

i

‘ie

- | Of an Y innocent person. ‘without any-attempt to-show . :

probable cause . HR ST 2 eta

fig :

| The warrant must speak as of the fie it was ‘issued.

7 Sahesquent events can neither narrow its authority nor:

‘extend it (Sgro v. Unitéd States, 287 U.S.. 206; 211 (1932)

~ and Nathanson v. United. States, 290 wv. S. 41, 47 (1933)).

"The officey, in his search involved herein took upon him-’.

: “self authority which lie did ‘not have..

B: limited to the search ‘of the first floor rear’ apartment of the’. .°.,

- -premises. He admittedly did not search the first floor rear

apartment of the ne See instead, rag Laat eee

ment ee: "! 18g

y authority. was

. ss 5) . "7 :

?

Re ee fet Fane oe

- In Keiningham v. United States, 287 F. 2d 126 (D.@ Cir. :

1960) the executing officer was sithilarly independent. Me .

-Search warrant authorized a search of No. 1106 18th St. —

NE, one of a group of row houses connected: y a party

-wall, The officers: on: several prior occasions and on the. .

"day of execution of the warrant had observed defendants—

known gamblers—entering No. 1106 and on that day blocked ©

their path of exit from that house and followed them into

the premises. . When they:found 1106 to be vacant they

located evidence of a newly constructed connecting entrance —

between Nos. 1106 and 1108, knocked on the wall and upon Z

receiving no answer entered and found defendants and the ©

— illegal material described i in the warrant to be, i in No. 1108.

In rejesting the government’s-éorftention that the variance

betweew thé warrant and the .execttion, thereof was a tech-

‘nical one and- that in view of defendants’ construction éf

_ the panel between the two houses they should be treated

‘as one unit the court said at. page 129: ,

e bnew of no clause in the warrant issued extend-

ing the authority granted them in the event of un- ~

. foreseen circumstances, and it is well settled that

authority to search'is limited to the place ‘described

in the. warrant and does not include additional or

different places. ?

Ssowsvar, not all the lower courts have been similarly. ly ues

cerned where no injury resulted from searches Omade-in =.

Bs mutiple dwellings on the bases of erroneous premise de-

- scriptions in the warrant. For e€ample,-in United States

v. Evans, 320 F. 2d 482 (6 Cir, 1963) the Sixth Circuit

reached an’ opposite conclusion in a case similar in the

i facts to Keiningham. In United States v.. Santore, 290 F. °

u - 4 ee 7 | Pane ¢@

search warrants must. be strictly construed. “The ,

7

Sane ears

2d 51 (2nd Cir., 1960), cert. den: 365 U. S, 834 and Unite?

States v. Poppitt (C. D.C. D.. Del., 1964), 227 F. Supp. 73,

the warrants described. the ‘premises to be searched.as one

_ family ‘houses where in fact they were each occupied. by

two families. In both cases’the warrants and executions —

were upheld, the courts emphasizing the fact that in pro-

' euring the warrants the officers had had probable cause to —

_ belie¥e the premises to be one family houses and did not _

search the’ homes of the second family. In Santore, where —

‘ the search and arrest were part of a large scale narcotics

‘crackdown’ the court felt that, if the officers had left and

had obtained ‘a new ‘warrant whén they discovered the

error in the one they were attempting to execute, they.

would have failed to conclude their ‘‘mission”’. Paren-_

thetically, it should be pointed out that Macauley, the offi-

_cer involved herein, was faced with no such dilemma. By

his own testimony petitioners ‘were not aware of his pres-

ence prior td his entry. into the basement apartment and

did not commit a crime in his presence. Thus he could have’

left the premises and secured a new warrant authorizing | ;

.. the Search he: intended to make without jeopardizing his

‘‘mission.’’* . = 3 ee

f,

“In its opinion denying siticiemars? motion to vacate and

is suppress;. ‘the Supreme Court of Queens County pays “Tip

service’’ to: the special problem arising where: search war-. |

rants covering multiple dwellings are involved. It clarifies —

its reliance upon Steele by citation of cases in which: such ~

‘search warrants have been upheld or would have been up-

held had the warrant recited the name of the ‘person whose

‘apartment was to be searched. .U nited tates v. Barkouskas,

-supra, and United States v. ‘Wihiniér, D.C: W.D. Wash., ey

1089), 284 F.. 528. ‘However, i in the caise at bar’ no a nie

a

;

eee a

is nade the warrant of the identity of the occupant of -

- the first floor rear apartment and in his supporting affidavit

‘the officer avers ‘only “This apartment (first floor. réar)

“believed to be occupied by Frances Arnone’ > (R. 58) without

reciting ; any. basis for this belief. No merition of Frances

Arnone appears in the hearings ands in fact, the apartment

was apparently occupied by petitioners Salvatore Arnone -

and Antonio Pinto. Ina four family house it is’a distinct

possibility that Frances Arnone—if: there be such a per- _

son—may occupy an’apartnient separate from that of Sal-_

vatore Arnone.’ Similarity of surname of tenant i is tot suffi-

‘ ejent to equate ‘the basement apartment with the first floor

- rear apartment. In any ‘event, the warrant which is the

instrument to be executed gave no clue as to who the occu-

_pant of the partment sought to be searched might be and |

“thus the cases relied’ upon by the. hearing. court are aca d :

plicable.

=

There ‘was no probable cause, nor any cause demonstrated

as to the search of any apartment of Arnone whether his

_ name be Frances or Salvatore. The sole information sup-

plied is that the petitioner Pinto entered premises, 40-66

97th Street, on four or five separate occasions. No where

is it alleged that he entered the apartment of Salvatore a

- Arnone. No where is it alleged that Frances. Arnone is in

anyway involved with petitioner Pinto. ‘In passing on the

validity of the watrant the review court may consider only

the information brought to the Magistrate’s attention.”?

Aguilar v..Téxas (1964), 378 U.S, 108, 109, footnote I. A

search warrant to be valid should be strictly on probable

cause. Pailing this, a warrant i is void, probable cause can

only be determined ‘‘from the facts and circumstances pre-

_ sented to him*(the Judge) under oath or affirmation.’’

4 as? o : eg

re in

g

"&

17

Siiesiaasin v. United States, supra, page 47. There was

either no probable cause for the search involved herein as 5

is‘ set forth hereinbefore and hereiziafter or there was a

lack of specificity i in the warrant which allowed the. search

- to be made;: which lack of — made the warrant in-.

valid. ;

e

The type of specificity” and accuracy called for where the,

‘premises to be’searched are located i in multiple dwellings

was well summed up more than thirty years ago::

‘*In those. cases. for example, which hold a warrant

to be valid which directs a search of an.apartment

house or other building occupied“by divers persons,

the particular part of such apartment house or build-

ing is by limitation confined either to premises there-

_ in occupied by a certain stated person or persdns,

or by designation of a certain part of the building.’’ . ’ a

United, States ex rel. Sunrise Products Co. v. Epstein

(D. C.E. D.N.Y. 1929), 33 F. 2d 982.

Neither of these requirements was met by the warrant

in the instant case. Under the present status of judicial ©

holdings in this area the laxness permitted by tlie court be-

low is not surprising. ' It is however an illustration of the

dangers implicit «i in suéh an approach and. as such an apt

, ease for. this court to consider and to use as a basis of élari-

) fying the law in this area. :

3.. The New York State courts’ ‘rejection of petitioners’

motion to suppress not only undermines. the requirement

of the Fourth Amendment that premises be described with

particularity but also undercuts that Amendment’s require-

ment that search warrants not issue unless there be ‘*prob- -

able cause’’ for searching*the premises Alescribed. |

—

= >

This ‘‘probable cause’? may ‘only be determined from -

‘‘facts or circumstances presented to (the judge) under oath

and affirmation.”’ Nathanson v. United States, 290 U.S. .41,

ay 47 -(1933).. In Sgro: v. United States, 287 U.S. 206, 211

a (1932) the Court. noted ‘‘The proofs supplied (for the is-.

suance of the warrant).. . must speak as of the time of the

issue of that warrant’? (anaieels supplied). It is beyond"

dispute that the question of whether probable cause exists

* . must be determined by the issuing g court—certainly. prior

to execution of the warrant and as a. prerequisite to its .

_issuance—and not by the offiéer executing it. Aguilar v.

Tewas, 378 U.S. 108 (1964) ; Matter of Rossenwasser Bros.,

| 24 Fed. 171, 173 (D.C. 1918). ape

_ The record below .provides an pone er example of the ,

wisdom of the’ requirement that prior determination of

probable cause be made by a disinterested person. At the :

time application was made for this warrant and at the

time of its issuance, Detective McCauley advised the isst-

ing court of those facts which he believed constituted proba-

ble cause for searching the first floor rear apartment of

the premises in question. These facts consisted of his hav-

ing seen petitioner Pinto go to the first floor rear. apart-

_ ment on the previous day and of his ‘‘belief’’ stated. with-

out source that this apartment “was occupied by one Frances

Arnone. Subsequent to the issuance of the warrant, but

prior to its execution, and in the process of its execution,

Detective McCauley saw petitioner Pinto enter a door in

. the premises which. led, not to the first floor rear apart-

ment, but to the basement apartment, and‘he proceeded to

_ execute the warrant within the basement apartment.

Q

‘Binge there was nitliing: in the warrant which deséribed” ~ |

the basement apartment the purported “probable cause’’

for searching that apartment could only have arisen “from =

. events arising between the issuance -and the execution of -

_ “the warrant. This. intervening cause must’ have been tthe

fact that petitioner Pinto entered a-door in the premises |

. which the detective subsequently learned led to the: base-

ment. There ‘is no. more justification for sustaining an -

execution based upon this type of evidence than there would

be for approving a search of any area which lay behind

any door which petitioner may have chosen to. enter at

the time the detective decided to.conduct a search. The

effect of the decision below is to make unnecessary the

existence of any search warrant, and to allow a police -

officer, intent upon seizing contraband he suspects to be

: present, to violate the rights of others—albeit ‘unintention-

: ally—in the process.

. Constitutional Sights. must not yield. to such exigencies |

of the moment. Essential to-the-. protection of the, basic.

constitutional right of privacy is the requirement that —

probable cause be determined by a neutral and detached

magistrate prior to the. search rather than ‘by the’ ‘Officer.

engaged in the often competitive enterprise: of ferreting’

out crime. " Aguilar v. Texas, supra, Johnson v.- United

States, 333 U.S. 10, 14 (1948) ; Giordenello v. United States, .

- 857 U.S. 480, 485 (1957); United States v. Lefkowitz, 285

~ US. 452, 463 (1932). .

. There is no dispute that i in the affidavit 1 upon which the

search warrant was obtained no probable cause was shown

‘to search the basement apartment; at the time he ob-

tained the warrant. Detective McCauley, did not know he:

fey

5

]

Nees

20°

would subsequently desire to search that specials his ©

- desire to do so arose only at the time he-was gttemping _

" to execute the warrant.: It is undisputed that the validity of -

‘By warrant depends upon. its contents which i in turn speak ee

al the time. it was issued. , Aguilar v. Texas, supra; Stan-

ford v. Texas, 379 U.S. 431 (1965) ; Johnson v. United States,

_ 333 US. 10 (1948).

~~

We submit that upon the basis of the securd herein the _

execution of the warrant was without legal basis and that ©

_ to sustain it, violates the requirement of the Fourth Amend-

_ ment and this Court’s -decisions thereunder. . There ‘must

oe ‘‘probable cause’’ to search the premises described i me ::

the warrant: :

‘* Any other rule would undermine ‘the right of the

people to be secure in their persons, houses, papers

and effects,’ and would o _ obliterate one of the most

fundamental - distinctions between our form of gov-

. €@rnment, where officers are under the law, and the.

. police state where they are the law.’? Johnson v.

United States, 333 U.S. 10, 17 (1948).

CONCLUSION

Wikivdfovs, for the reasons tathk above stated, it

is respectfully submitted that this petition should be e

er

javes and Fuipuan

. Attorneys for Petitioners.

Of Counsel :.

Evcene FetpMan

ace me ermeen ee ot ee

Secret Y RED ON RRR Coe

| | APPENDIX A. |

Opinion of Coney, J., Denying Motion to Suppress

| SUPREME COURT

- Quzens County .

Camanan Tznm—Panr I : sie : .

is Ind. ‘No. 1773-62 erg came

THE PEOPLE OF THE SraTE oF New Yorx, |

y.

Satvaronz ARNONE,

Awzomt0 Pawn,

+

_ By Joszpn M. Conroy, J.

Dated April 29th, 1963

Kd

; A hearing was held on April 16, 1963 (1) for an order

‘to vacate a search warrant issued October 26, 1962, and

the return of the property seized, and (2)'to suppress the

_., use of such property seized as evidence on the ground that

said seizure was. unreasonable and in violation of the IV

Amendment of the United States Constitution.

Based upon the testimony and affidavit for the search —

warrant (Ex. A), the Court finds there was probable cause

for the issuance of: ‘said warrant and that branclr of the

motion is denied. wei

_.The remaining issue is the legality of the search and -

seizure based upon the search warrant, The warrant. —

Defendants.

to

Apyeniia A :

Opinion by Conroy, J., Denying Motion to Suppress ;

directed a search of premises 40-66 97th Street, Ist Floor —

’ pear apartinent,. Corona, . Queens, occupied by Frances

Arnone and others.’ The testimony ‘at the hearing was

_ that the entrance to. the apartment in question was or the

rear of the first floor of premises 40-66 97th Street, Corona, —

and ‘that upon opening the door there was a flight of steps”

leading dow to 4 basement apartment. In the basement

apartment. the : detectives found both of the defendants

together with written records of Mutuel Race ‘Horse nid

and other gambli g paraphernalia. |

* The petitioners argue that the basement of said premises

is a separate and distinct area and cannot be said to form

a part of or to be in.any way related to the. premises desig-

nated in the warrant to be searched, citing U. S.v. Falcone, ©

109 Fed. (2d). 579, 582; affd. 311 U. S. 205.. A reading of _

3 that case does not strengthen the petitioners’ position. It

does state “A warrant must indeed be. specific enough not

to allow the officers latitude to search at their. choice;’’

however it then goes on ‘to. state ‘All that is required is.

reasonable certainty of identification,?’ citing. Steele v.

U. S., 267 U.S. 498, 503, 45 S. Ct. 414, 69 L. Ed. 757 ;

Chiaravalloti v. U. 8.,7 Cir. 60 F. (2) 192; “Rose v. U. 8.,

8 Cir., 45 F. (2) 459. -

There is no dispute that thegentranoe t to the aplistaient .

_ > was in the rear of the’first floor of the premises. In addi-*

tion, the two petitioners were co-lessees of the apartment

_ whose entrancegwas in the rear of the first floor (see affidavit

of Antonio Pinto, dated April 2, 1963, p. 1). .

In U. 8. v. Barkouskas. (38 F. (2) 837,'838) the Court ;

oo stated ‘*(T)t has been, held that a'search warrant is valid.

which directs the search of;-an apartment house or. other:

as

wt Appendix’ A: oe

ae. by Conroy, J. , Denying Motion to ‘Suppress

buildings occupied by a number of different tenants, and

states the name of the person occupying the apartment to’

_. be searched. Such a description is sufficient, as it ‘ par-

ticularly’ points to .a-definite ascertainable place’’. In

ra

In Townsend v. U: 8. {258 F, (2d) 461), the Court stated

‘<The warrant of search‘was directed solely to the premises:

_ and not to a‘person. .The address specified was the correct

address and street n r of- Townsend ’g residence. Thé

U. 8. v. Wihinier (284 F. 528) it held that a search warrant ee

was valid which gave the street number and city, the name

of the person ‘who was the occupant. In that case. the «

premises was an apartment house..

" ELCNeee

warrant accurately i lentified.and described it. The descrip- .

tion was ‘such as te enable the officer readily to find it. ;

That is sufficient. antes ;

‘+ ‘The test of the sufficiency of the. description i is whether

it enables. the officer executing the warrant to: Jocate the ‘

place defistitely and with certainty ( 74 A: L. R. 1418, 1500).

‘The motion is denied.

Order. entered accordingly.

_ The clerk of the Court is directed to mail a copy of the :

decision and order to the attorney for the defendants.

la Joszrx M. Cowroy, KS

J. 8.0.

to)

on

rh <x

a@*

+

call

“APPENDIX &

Order of Affirmance of Appellate Division

: (Peo. v.. Arnone). Sra psac! |

At a ‘Term ‘of the Appellate Division of

‘the Supreme Court of the State of.

New York held/i in and for the Second

Judicial D ent at the Borough ~

_ of ee the 18th day of April, |

a a :

Present—Hon. Hewsy ‘ Uonerns,

Acting Presiding Justice.

— Mascon G. Cumiss,

«T° Barroy Hu, 7

-*© Samuen Rasin, ~

“A. Davm Bengamin, = .

Ne | | Justices.

y%

v

‘Tue PEOPLE OF THE Strate or New. York, :

x : ee Respondent, tabs bY

i Hoe

SaLvaToRE Anwonz, |

' Appellant.

"%

We

OrpEr On APPEAL FROM JUDGMENT OF CONVICTION AND » ORDER

6

The above named Salvatore Arnone, defendant in this ac-

tion having appealed to the Appellate Division of the Su-

prenie Court from (a) a Judgment.of the Supreme Court

of the County of Queens, rendered on the 17th day of June,.: °

.

&

,

J)

‘

jf B.. ; age 44 ie ps

" AS |

- Append B—Brder of Afirwiisiee of Appellate, Division

(Peo. v. arnaee) Aa 8 it

hee ith. Gar

1968Seonvieting him of attotiptiod violétionl 6f « of sédtion 971-

of the Penal Law : as a felony, on his plea of guilty and-im-\

_ posing and suspending execution of sentence; and (2) Ne,” ore

so: much of an intermediate order of said’ court entéred Se

May 2, 1963 which denied after a hearing his motion fo va. ae

‘cate a search warrant and to suppress evidence (Code Crim. ;

Pro., Section 813-c) herein, and the said appeal having en ./

argued by Mr. Peter, J. Peluso of Counsel for the gripellant

_ and argued by Mr. Matthew Muraskin, Assi; ft ‘District Tig:

Attorney, of Counsel for the respondent, and due delibera-.

tion having been had thereon; and upon the decision. slip:

of the court herein, heretofore’ filed and made ¢ a. part ee :

It is Ordered and Adjudged that the judgment of convie-

tion and intermediate order so appealed from ” and the

same- hereby are unanimously affirmed. «.

Satie, : 3

~ ° Hgpman M..Pooun

Acting Clerk

“

7 @.

- @ c e i 3 ——

. *.- L, Baspow Hria,.:- ~~ 2

«¢ Samvue Rasty, nena

: ” A Davin Banzannry, pon Agee

a ae . _. Justices.

: <n a ' ak: . by Gents , , ind ; a ° ee

eur PEOPLE c OF THE Stare OF , New Yor, *

i SS eee ~ Respondent,

eg ae : Ve +

. Antoyio PiyTo, ie

'o : tye tas : - Appellant.

x ei oe ae

&9

7 . -A6 :

‘s 9 ia .

2 -, ABPENDIX Cis

Order of ‘Aeon: of hepiliebs Division Vg

, o isk - (Peo. ve Pinto) BNI os

at ° he's Weis. ot Be ‘Appellate Division.‘of | 4

% | the. Stiprenié Court. of the State ‘of

‘New York held in and for the Sécond :

_ Judicial Department at, the. Borough

of Brooklyn, on the’ ome bday of Stil

| 1966.

Present:

ee ay “Hox. Hates 2 Cissanihn

et Se an Presiding Justice.

-Masous a. CHRIsT, —

24 , Onpzn oN APPEAL FROM JupeMEnt OF Conviction AND ORDER

The above named Antonio Pinto, defendant i in this action

; 4. . having appealed: to the Appellate: Division of the Supreme

Court’ from: (la Judgment of the Supreme Court ‘of the

County: ‘of Queens, rendered a on the ‘17th day of June, 1963

a oes convicting him of attempted violation of section vit of the.

\ ons | ms

° ° é . ‘

55 \ e ¥ 2 ee

| hs " : : a . . =

he Gi Fs "¢

Pes rs — a =! Ld gs ri _— a

pee

as pesinamaaand paa~sne,

. et :

7 "i ;

t—~ \ 99 .

P) ‘ .

aC

.4

Appendia ( c—Oraer ss ‘sia of Appellate Division

bie (E29. v. Pinto) | .

ee | re

a

Penal taw as a = tea, on his ‘plea of gly and imposing cs

and suspending execution of sentence ; and (2) from somuch :

. of an intermediate order of said court entered May 2, 1963

-° which denied, after a hearing his motion to vacate a search

ge) warrant and'to suppress evidence (Code Crim. Pro., Section

' 813-c) herein, and the said appeal having been argued by

Mr. Peter J. Peluso of Counsel for the appellant and ar;

by Mr. Matthew Muraskin, Assistayt District Attorney,’

Counsel for the respondent, and due deliberation havi g

been had thereon ; and upon the opinion ~ decision slip bf’

ee Tt is Ordered and Adjudged that fs oie: of convi i :

tion and ‘intermediate order so appealed. -from be: and the: I,

“> same hereby are tinanimiguaty affirmed. abate accent : :

| Enter: eae cones

- Herman M. Poovut

Acting Clerk. *»

_ ~ ue \

1 ; =*\ be

\,

° r . on

2)

’ a ss 4 F

| i . l\

| \;.

\/

q

€ "a

g atl

e ie zh

4.26 .

i : : *¢ i

. 2 Y

+ * *

o od ’ » %

‘ A 2 .

. & : y ciel

o oi

° OA.

2 p Sve

pa > APPENDIX D-

"Decision of Appellate Division

aa 132 E. and 133 E. The People, ete., respondent, v. Salvatore

Arnone and Antonio Pinto, appellants. |

_ Appeal by: defendants from: (1) a judgment of the ecuie -

Court, Queens County, rendered June 17, 1963, convicting .

each of them of attempted violation of section 974-a of the ~

~ Penal Law as 4 felony, on their respective pleas of guilty,

and imposing and suspending execution of sentence; and

(2) as limited by their brief, from an intermediate order

of said court, entered May 2, 1963,,which denied after a

hearing: their motion to vacate a search warrant and to

suppress evidence (Code Crim. Pro., § 813-c).

J udgment and intermediate order affirmed. No opinion.

UcHETTA, a P. J, Dae, was Rapin and BEnsamIN,

_JJ., concur.

7 April 18, 1966

{Cznmrercarr0%]

Ai

_SUPREME court OF THE STATE-OF NEW YORK, .

' APPELLATE Division, at widen te

‘Seconp J UDICIAL DzPpARTMENT, -

Olerk’s Office, Borough of Brooklyn, N. Y.

I, Herman M. Pouk, Clerk: of the Appellate Division of

the Supreme Court of the State of New York in the Second

J udicial Department, do hereby certify that the foregoing

is a copy of the decision-made by said Court upon the

e°?

“7

Appendia D—Decision of Appellate Division |

- Appeal in the above entitled action, and entered in may office

on the 18th day of April, 1966... 4 ee ecuae oa 5

In Wrrness Wuniaor, I have hereunto set my hand and |

- affixed: the seal of said Court, at’the Borough of Peete. ce

| this 18th cl of October, 1966.

- Heawaw M. Pocut

~ Clerk..

-

[Seat]

A10

APPENDIX E

Certificate Denying Leave to Appeal to

"Court of Appeals

STATE OF NEWYORK. -

_ Court or APPEALS

Before: Pa Ei

| Hon. Aprian P. Burge,

—_ *

vv

Tue Peopte or THE State or New York,

: Respondent,

—against—

jase Annons and Antowto. PrnyTOo,

Associate Judge.

Defendants-Appellants. :

—

a

L Aprian P. Boake, Associate Judge of the Court of Ap-

* . peals of-the State of New York, do hereby certify that, upon

application timely made by the above named appellant for a |

certificate pursuant to Section 520 of the Code of Criminal .

Procedure, and upon the record and proceedings herein, .

there is no question of law presented which ought to be re- -

viewed by the Court of er and ceca to a :

: is hereby denied. fats G

Dated at New York City, New York:

July 1, 1966 |

i ius } A BuRKE

Associate Judge