39 A.D.2d 671 | N.Y. App. Div. | 1972
Order, Supreme Court, New York County, entered on January 24, 1972, reversed, on the law, and the motion to controvert the warrant is denied. The question to be resolved is whether the absence of a written or autographed signature on an affidavit in support of a search warrant (the typed name of the officer appearing thereon) invalidates a search warrant and renders a subsequent search and seizure illegal. The signature of the Judge attesting that the document was sworn to appears on the affidavit, as does that of an Assistant District Attorney who approved the paper. The warrant issued contained the signature of the Judge and the body of the warrant contained the recital “ Proof by affidavit having been made this day before me ”, etc. At the hearing the officer testified that he applied for the warrant on September 5, 1969, the date of issuance. There is no real question as to probable cause or that a sizeable quantity of narcotics was found during the search. It should be noted this search occurred prior to the effective date of the new Criminal Procedure Law. The law then existing provided that a “ search warrant cannot be issued, but upon probable cause, supported by affidavit ” (Code Crim. Pro., § 793). The person seeking the warrant was required to appear personally before the Judge, who was required to take the affidavit or deposition of the person seeking the warrant (§ 794). If the Judge were satisfied that sufficient grounds existed it was mandated that he “issue a search warrant signed by him with his name and office” (Code Crim. Pro., § 796) (italics supplied). Section 797-a set forth the prescribed form of affidavit required in support of a search warrant. The affidavit must be sworn to and immediately preceding that portion of the affidavit appears the single word “ name ” rather than “ signature”. There is no dispute that the typed name of the affiant did appear on the affidavit. The affidavit here merely served to invoke the judicial power and was not to serve as evidence to determine the guilt or innocence of the defendant. As such the essential element was the oath or affirmation of the applicant before an officer having authority to administer the oath. In the absence of evidence to the contrary, there is a presumption that the Judge, in reciting that the officer swore to the document, properly carried out the function of his office and truthfully stated the fact. A similar presumption would attach to the approval of the Assistant District Attorney. It is not contended that the typewritten name of the officer was not on the paper at the time it was sworn to. That being so, the fact that there was not an autographed signature would not invalidate the document. There was no obstacle which prevented the officer from adopting the typed name as his own and the record indicates such to have been his intention (see General Construction Law, § 46; Brooklyn City R. R. Co. v. City of New York, 139 Misc. 691; David v. Williamsburgh City Fire Ins. Co., 83 N. Y. 265). The act of swearing, or affirming, together with the existence of an intent to adopt the paper and its contents, including the officer’s name appearing thereon, was sufficient to validate the affidavit. Additionally, the officer’s identity was sufficiently shown to render an autographed signature unnecessary in the absence of a statute specifically
