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PEOPLE STATE NEW YORK v. FRANK M. DI POLITO (09/25/69)
CITY COURT OF NEW YORK, ROCHESTER, CRIMINAL BRANCH
1969.NY.42889 <http://www.versuslaw.com>; 304 N.Y.S.2d 868; 61 Misc. 2d 65
September 25, 1969
THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.FRANK M. DI POLITO, DEFENDANT
John C. Little, Jr., District Attorney (Howard Relin of counsel), for plaintiff.
Di Gaetano, Dorsey & Iannuzo (James M. Iannuzo of counsel), for defendant.
Culver K. Barr, J.
The defendant is charged with violation of sections 225.05 and 225.15 of the Penal Law and section 44-12-a of the Municipal Code, in that, on April 11, 1969, he knowingly and unlawfully promoted gambling, possessed gambling records and was a keeper of a gambling place. In this hearing brought to controvert the search warrant herein and to suppress the evidence obtained in the execution of the search warrant, the court makes the following findings of fact and conclusions of law.
In the affidavit requesting the court to issue the search warrant, police officer Mario D. Di Fante stated that he had received information from a confidential source that the defendant (and others) was presently engaged in illegal gambling activity by accepting horse race bets from members of the public at Frank's Novelty Store, 1764 Lake Avenue, in the City of Rochester. Officer Di Fante went on to say that on April 3 and April 7, 1969, the said confidential source, under Officer Di Fante's supervision, actually placed horse race bets with the defendant at the above location. The officer concluded by stating that the defendant and his premises were carried on the police department's active gambling files and that the confidential source had been reliable on four previous occasions which resulted in both arrests and convictions.
Being convinced by this affidavit that there was probable cause to believe that the defendant was engaged in illegal gambling activity, I signed the search warrant herein on April 11, 1969. One part of the printed form search warrant reads as follows: "You are, therefore, commanded, in the day time, to make immediate search on the person of". (Emphasis supplied.)
The sole witness at the hearing was the arresting police officer, Mario Di Fante, who was called for the People. His testimony, insofar as here pertinent, was as follows:
At 6:45 p.m. on April 11, 1969, Officer Di Fante, accompanied by three other police officers, arrived by car on the scene of Frank's Novelty Store, 1764 Lake Avenue, and, from the police car parked on Lake Avenue, observed the defendant inside the store.
At approximately 7:55 p.m. the defendant, still under Officer Di Fante's observation, left the store at 1764 Lake Avenue, walked next door and entered a car wash building at 1776 Lake Avenue where he remained for approximately 15 minutes under Officer Di Fante's observation.
At approximately 8:10 p.m., as the defendant was exiting from the car wash building at 1776 Lake Avenue, Officer Di Fante approached the defendant and presented and delivered the search warrant to the defendant.
The premises were searched pursuant to the search warrant and many horse race bet slips were confiscated by the police officers. The defendant was placed under arrest at approximately 8:30 p.m. and the search was concluded at approximately 9:15 p.m., the written inventory being presented to the defendant at 9:35 p.m. at police headquarters. Officer Di Fante testified that the entire search was conducted in the presence of the defendant and that all consfiscated items were shown to the defendant at the scene.
The only other evidence submitted to the court at the hearing was a printed statement from the Director of the United States Naval Observatory indicating that, within two minutes either way, sunset at Rochester, New York on April 11, 1969, was at 6:48 p.m. This was placed into evidence by defense counsel.
The legal issues or questions raised by defense counsel in the defendant's moving papers and at the conclusion of the hearing were, basically, as follows:
1. That there did not exist from the affidavit of Officer Di Fante sufficient evidence to establish probable cause for the issuance of the search warrant because, aside from the "hearsay" statements of Officer Di Fante, there were no statements of Officer Di Fante having independently observed any illegal activity on the part of the defendant.
2. That, in the execution of the search warrant, Officer Di Fante did not comply with section 803 of the Code of Criminal Procedure, in that a receipt and inventory of the property taken pursuant to the search warrant was not given to the defendant at the time taken but after the defendant was arrested and taken into custody.
3. That the affidavit and search warrant were not sufficiently particular as to the identification of the premises to be searched along with the search of the person of the defendant. . That nowhere in the affidavit of Officer Di Fante does it appear that the defendant had any proprietary interest, leasehold ...