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PEOPLE STATE NEW YORK v. JOSEPH B. (ANONYMOUS) (06/30/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


June 30, 1969

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOSEPH B. (ANONYMOUS), APPELLANT

Appeal by defendant from a judgment of the County Court, Westchester County, rendered February 13, 1968, which adjudicated him to be a youthful offender and sentenced him to a three-year period of probation.

Christ, Acting P. J., Brennan, Rabin, Hopkins and Munder, JJ., concur.

In our view, the seizure of certain shirts and pairs of socks from appellant's bedroom was illegal. These items were unexpectedly found by the searching officer in appellant's bedroom, where the officer was conducting a search pursuant to a search warrant in connection with another crime. It is clear that the warrant could not form the basis for the seizure of the shirts and socks in question, since the warrant did not designate these items and the items were not contraband (People v. Baker, 23 N.Y.2d 307). In any event, the searching officer did not seize these items on his first visit to the house, but returned to headquarters to check them against a teletype alarm and then sent a brother officer to seize them. The People did not demonstrate that the second search, resulting in the seizure, was consented to (cf. Bumper v. North Carolina, 391 U.S. 543). On this record the judgment must be reversed and the information dismissed.

Disposition

Judgment reversed, on the law and the facts, and information dismissed.

19690630

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