| People v Fulton |
| 2008 NY Slip Op 02294 [49 AD3d 1223] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Sherrell UniqueFulton, Respondent. (Appeal No. 1.) |
—[*1] Richard W. Youngman, Conflict Defender, Rochester (Kimberly J. Czapranski of counsel),for defendant-respondent.
Appeal from an order of the Monroe County Court (Alex R. Renzi, J.), entered June 14,2006. The order granted that part of defendant's omnibus motion seeking to suppress physicalevidence seized pursuant to a search warrant.
It is hereby ordered that the order so appealed from is unanimously affirmed and theindictment is dismissed.
Memorandum: We conclude in these appeals by the People that County Court properlygranted those parts of defendants' respective omnibus motions seeking suppression of thephysical evidence seized pursuant to a search warrant. "Generally, a warrant to search a subunitof a multiple occupancy structure is void if it fails to describe the subunit to be searched and onlydescribes the larger structure" (People v Henley, 135 AD2d 1136, 1136 [1987], lvdenied 71 NY2d 897 [1988]; see People v Brooks, 54 AD2d 333, 335 [1976]; seegenerally People v Rainey, 14 NY2d 35, 37-39 [1964]). Here, although the investigatingpolice officers possessed information concerning drug activity at a particular apartment within amultifamily dwelling, the warrant identified the areas to be searched as "the entire premises. . . , to include all its storage area[ ] and curtilage," and failed to identify theparticular apartment by number or occupant (see Henley, 135 AD2d at 1137). Thus, thecourt properly concluded that the warrant failed to meet the constitutional requirements ofparticularity with respect to the description of the place to be searched (see US Const 4thAmend; NY Const, art I, § 12; Henley, 135 AD2d at 1136; see generallyRainey, 14 NY2d at 37-39), as well as the statutory requirements of particularity (seeCPL 690.15 [1] [a]; 690.45 [5]). Present—Hurlbutt, J.P., Smith, Centra, Green and Gorski,JJ.