| People v Bishop |
| 2018 NY Slip Op 03265 [161 AD3d 1547] |
| May 4, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Edward Bishop, Appellant. |
David J. Pajak, Alden, for defendant-appellant.
John J. Flynn, District Attorney, Buffalo (David A. Heraty of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered April4, 2016. The judgment convicted defendant, upon a nonjury verdict, of animal fighting.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby adding the phrase "other than farm animals" following the reference to "any animal" in thefirst ordering paragraph of the order dated April 4, 2016, and striking the second sentence of thefirst ordering paragraph therein and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a nonjury verdict,of animal fighting (Agriculture and Markets Law § 351 [2] [d]). We rejectdefendant's contention that all of the property seized, i.e., the dog fighting paraphernalia asidefrom the dogs, should have been suppressed. Here, a search warrant authorized police to searchthe subject premises for "fighting dogs" and "for any personal papers or documents which tend toidentify the owner, lessee or whomever has custody or control over the premises . . .searched or the items seized, and seize said property." "[L]aw enforcement officers may properlyseize an item in 'plain view' without a warrant if (i) they are lawfully in a position to observe theitem; (ii) they have lawful access to the item itself when they seize it; and (iii) the incriminatingcharacter of the item is immediately apparent" (People v Brown, 96 NY2d 80, 89 [2001]).In our view, there is no basis to disturb County Court's determination that the police discoveredthe dog fighting paraphernalia in plain view inasmuch as the hearing evidence demonstrated thatone of the police officers involved in the search was in a lawful position to observe the items,had lawful access to the items and their incriminating character was immediately apparent to her,based on her personal experience in dog fighting cases (see id. at 89-90; People v Woods, 93 AD3d 1287,1288-1289 [4th Dept 2012], lv denied 19 NY3d 969 [2012]).
Defendant failed to preserve for our review his related contention that the statement in thewarrant that "there is probable cause to believe . . . that certain property has beenused, or is possessed for the purpose of being used to commit a crime or offense" is overbroad asa matter of law and should be severed from the rest of the warrant. In any event, defendant'scontention lacks merit. That language is a subpart to only the section of the warrant that statedthat probable cause existed, not to the section of the warrant that instructed and authorized whereand for what to search. There is thus no basis to sever that clause inasmuch as it is merely used asan introduction to the property to be seized and is not, as defendant contends, an independentprovision authorizing an unconstitutional general search (cf. Brown, 96 NY2d at 88).
As the People correctly concede, the court's directive in the order dated April 4, 2016, that,"[t]o ensure compliance of this part of the [c]ourt's sentence, the defendant must submit toinspections of any premises which he owns or resides at by a duly licensed law enforcementagency or humane society" is not authorized by any applicable legislation and must be stricken.In addition, the court's directive under Agriculture and Markets Law § 374 (8) (c) inthat order must specifically exempt farm animals, in accordance with the language of the statute.We therefore modify the judgment accordingly.
Finally, although not dispositive to the issues raised on appeal, we must voice ourcondemnation of the testimony of the drafter of the subject warrant that he was deliberatelyvague in drawing the warrant. That is an unacceptable practice and should be discontinuedimmediately because it is in direct contravention of the principles of the Fourth Amendment.Present—Whalen, P.J., Lindley, DeJoseph, Curran and Troutman, JJ.