| People v Cook |
| 2013 NY Slip Op 05151 [108 AD3d 1107] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v MichaelD. Cook, Respondent. |
—[*1] Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-respondent.
Appeal from an order of the Monroe County Court (Patricia D. Marks, J.), datedNovember 22, 2010. The order, insofar as appealed from, granted that part of theomnibus motion of defendant seeking to suppress certain physical evidence.
It is hereby ordered that the order insofar as appealed from is unanimously reversedon the law, that part of the omnibus motion to suppress certain physical evidence isdenied, and the matter is remitted to Monroe County Court for further proceedings on theindictment.
Memorandum: The People appeal from an order granting that part of defendant'somnibus motion to suppress physical evidence seized from behind the storefront area ofpremises that were searched pursuant to a search warrant. On August 26, 2009, a courtissued a warrant authorizing the search of "1304 Dewey Avenue, Rochester, NY." Thewarrant application was obtained based upon information that defendant was producingcounterfeit checks at that address. Both the warrant and the application thereforidentified the premises by setting forth the address and by describing the location indetail as, inter alia, "a business store front style building that has a predominantly glassfront." The items to be searched for and seized included "computers, . . .peripheral accessories . . . , software, data files, . . . disks,. . . or other computer storage media related to the making of, possession ofCounterfeit Checks or counterfeit commercial instruments . . . as well asany and all check stock paper or paper used to produce checks and any computersoftware used in the production of checks." The warrant was executed the same day itwas issued and items described in the warrant were seized during the search. Severalofficers involved in the warrant's execution testified at the suppression hearing that someof the evidence seized was found in a series of interconnected rooms located behind thestorefront area of the subject premises.
We agree with the People that County Court erred in suppressing evidence seizedfrom behind the storefront area of the property. The Federal and State Constitutionsprovide that warrants shall not be issued except "upon probable cause . . .and particularly describing the place to be searched, and the persons or things to beseized" (US Const 4th Amend; NY Const, art I, § 12; see People v Fulton, 49 AD3d1223, 1223-1224 [2008]; People v Henley, 135 AD2d 1136, 1136 [1987],lv denied 71 NY2d 897 [1988]). "Particularity is required in order that theexecuting officer can [*2]reasonably ascertain andidentify . . . the persons or places authorized to be searched and the thingsauthorized to be seized" (People v Nieves, 36 NY2d 396, 401 [1975]).Nevertheless, that "does not mean that hypertechnical accuracy and completeness ofdescription must be attained but rather, [it means] from the standpoint of common sense. . . that the descriptions in the warrant and its supporting affidavits [must]be sufficiently definite to enable the searcher to identify the persons, places or things thatthe [court] has previously determined should be searched or seized" (id.).
We agree with the People that the warrant sufficiently described the premises to besearched (see generally Nieves, 36 NY2d at 401). Although "a warrant to searcha subunit of a multiple occupancy structure is void if it fails to describe the subunit to besearched and . . . describes [only] the larger structure" (Henley, 135AD2d at 1136), here the series of interconnected rooms were not "subunits," but wereinstead part of the single rental unit comprising 1304 Dewey Avenue. Moreover, weconclude that the purpose of the language in the warrant describing the property as a"business store front style building" was to identify and describe the premises; thatlanguage was not intended to limit the scope of the search to only the storefront area ofthe premises. Thus, the officers executing the warrant did not exceed the scope of thewarrant by seizing items from the rooms behind the storefront area. Contrary to thecourt's conclusion, the hearing testimony established that the areas where items wereseized, although separate from the storefront area, were part of the property authorized tobe searched (see generally People v Marshall, 13 NY2d 28, 32-33 [1963]; People v Brito, 11 AD3d933, 935 [2004], appeal dismissed 5 NY3d 825 [2005]; People vWatson, 254 AD2d 701, 701 [1998], lv denied 92 NY2d 1055 [1999];People v Santarelli, 148 AD2d 775, 775-776 [1989]). We therefore reverse theorder insofar as appealed from and deny defendant's omnibus motion to the extent that itsought suppression of physical evidence seized from behind the storefront area.Present—Scudder, P.J., Peradotto, Lindley and Sconiers, JJ.