60 Misc. 2d 108 | New York County Courts | 1969
The defendant, Benjamin Nicoletti, Sr., and 11 others have been indicted by the Grand Jury of Niagara County. The defendant, Benjamin Nicoletti, Sr., is charged with the crimes of conspiracy in violation of section 580 of the Penal Law of the State of New York, which defines conspiracy to commit a crime as a misdemeanor, and with conspiracy in the fourth degree in violation of section 105.00 of the Penal Law effective September 1, 1967, defining conspiracy to commit a crime as a Class B misdemeanor. The defendant is further charged as a common gambler as a misdemeanor in violation of section 970 of the Penal Law and with promoting gambling in the second degree in violation of section 225.05 as a Class A misdemeanor under the Penal Law effective September 1,1967.
In connection with the prosecution, certain evidence was seized under the authority of a search warrant, issued by this court, and involving a raid on an alleged gambling operation at two locations. During the search, more than 50 persons were searched and a great quantity of evidence was seized, including gambling paraphernalia, specially treated money, and records. All of the evidence involves dice or “ crap ” games, except so-called “ bottom sheets,” which were found on the person of the defendant, Benjamin Nicoletti, Sr. The “ bottom sheets ” are deemed evidence of bookmaking activities. Motion is now made to suppress all such evidence.
The search warrant, so captioned, follows the general format provided in the Code of Criminal Procedure, and the command provisions are set forth in two paragraphs which read as follows:
‘ ‘ you are, therefore, commanded, at any time of the day or night, to make an immediate search of the person of benjamin nicoletti, sr. and any other person who may be found at premises known as 383 Oliver Street, North Tonawanda, New York (first floor) and to have such property in his possession or under his control or to whom such property may have been delivered, for the following property: Gambling devices and the proceeds of gambling, bookmaking paraphernalia, and other information, including gambling records, together with other equipment and*110 papers, records, data, and all papers pertaining to the receiving of wagers or bets which are kept and used in violation of Title M, Sections 225.05 and 225.15 of the Revised Penal Law, at any hour of the day or night in the first floor of premises known as 383 Oliver Street, North Tonawanda, New York (Oliver Social Club) and the first floor of premises known as 407 Oliver Street North Tonawanda, New York (The Varsity Restaurant, and the first floor of the apartment adjoining the restaurant on the north side thereof).
“ You are commanded to execute this Search Warrant at any hour of the day or night, pursuant to Section 799 (b) of the Code of Criminal Procedure; the Peace Officer executing this Warrant is authorized to enter the said premises known as 383 Oliver Street, North Tonawanda, New York, without notice of his authority or purpose and is hereby directed that if the aforementioned articles are found within the same or any part thereof to bring them forthwith before me, at the County Court, in the City of Lockport, Niagara County, New York.”
The petitioner, Benjamin Nicoletti, Sr., contends first, that the warrant is fatally defective for failure to name the persons to be searched or to describe them as definitive individuals with sufficient particularity to comply with the requirements of the Fourth Amendment of the United States Constitution, with the requirements of section 12 of article I of the Constitution of the State of New York, and with section 793 of the Code of Criminal Procedure. Although varying in form, all of these provisions require in substance that the person or thing to be seized be named or otherwise be particularly described. The second contention is that the evidence seized from mere players is exempt from seizure because they are not engaged in a criminal activity under the law. The third contention is that the warrant only authorizes a search of persons and not premises, and that the general search of persons is without authority and was, in this case, a general search of persons and premises and all evidence must, therefore, be suppressed. The defendant cites People v. Rainey (14 N Y 2d 35), People v. Marshall (13 N Y 2d 28), and People v. Rawluck (14 N Y 2d 609). It is also asserted that there is no probable cause shown in the affidavit for violation of section 225.15 of the Penal Law as stated in the warrant and that the bookmaking evidence, if any, must be suppressed.
The People contend the warrant was properly issued, and urge at great length that the defendant is without standing to object to any seizure except seizure from his person and the premises where he was situated when searched.
“ The property described in this section, or any part thereof, may be seized from any place where such property may be located or from the person or possession or control of any person who shall be found to have such property in his possession or under his control.” (Code Crim. Pro., § 792, subd. 4.) The distinctions of constitutional refinement as to the inherent taint of searches as affecting the rights of the innocent public are discussed at length by the Supreme Court of the United States in Linkletter v. Walker (381 U. S. 618) and Wong Sun v. United States (371 U. S. 471). Holding, then, that the issuance of the warrant and its execution under the circumstances of this case are not inherently void procedures so as to come within the interpretation of People v. Rainey (supra), which held that a warrant obtained by fraud against the court and issued to the harassment of innocent persons was void for all purposes, the court must reject all other considerations of the use of the warrant against the players as being improperly raised, since the defendant has no standing to raise or defend the players’ individual complaints. (See People v. Estrada, 23 N Y 2d 719; People v. Cefaro, 21 N Y 2d 252.)
As to the form of the warrant as submitted to the court and signed, concededly the command portion is expressed in verbiage which leaves much to be desired. If the first paragraph of the command provisions were isolated, it might well, as defendant urges, be deemed to authorize a search of persons only and not of premises. Clearly, the warrant authorizes the search of the person of Benjamin Nicoletti, Sr. Clearly, it authorizes, well supported by affidavits showing probable cause, search of those persons found in the allegedly closely secured gambling club at 383 Oliver Street. Clearly, the warrant authorizes the seizure at 383 Oliver Street of equipment, paraphernalia and books and records under the control of persons on the premises, and, in
One matter remains to be disposed of. Affidavits in support of the warrant contain a detailed description of a dice game or “ crap” game, including the personal structure, physical layout and manner of operation. Included in the request for the warrant is a request for the seizure of bookmaking evidence, including a search for evidence of the proceeds of bookmaking. Nowhere in the affidavit is there probable cause to show in any manner any possible operation of a bookmaking activity. In connection with the execution of the warrant and the search of Benjamin Nicoletti, Sr., it further appears that the property seized from the person of the defendant, Benjamin Nicoletti, Sr., includes the so-called “ bottom sheets ” which are claimed to be balance records of a bookmaking operation. It is noted further that the command paragraphs of the warrant include a direction to search for evidence of violation of section 225.15 of the revised Penal Law. Section 225.15 of the Penal Law applies only to crimes involving bookmaking, lottery, and policy. The seizure of such property is not based on any probable cause as to bookmaking shown in the affidavits, and the so-called ‘ ‘ bottom sheets ’ ’ seized pursuant to the warrant issued as to such offense without probable cause are therefore suppressed.
The defendant contends in part that if the warrant is not valid in all respects, under the holding of the Court of Appeals in People v. Rainey (14 N Y 2d 35, supra) all of the evidence must be suppressed. As previously indicated, the court does not interpret People v. Rainey as holding such an extreme point of view, and notes that in People v. Rawluck (14 N Y 2d 609) the Court of Appeals specifically held that evidence legally seized may be used against a defendant whereas that portion of the