Opinion
No. KA 06-03775.
March 14, 2008.
Appeal from an order of the Monroe County Court (Alex R. Renzi, J.), entered June 14, 2006. The order granted that part of defendant's omnibus motion seeking to suppress physical evidence seized pursuant to a search warrant.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JESSICA BIRKAHN OF COUNSEL), FOR APPELLANT.
RICHARD W. YOUNGMAN, CONFLICT DEFENDER, ROCHESTER (KIMBERLY J. CZAPRANSKI OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Present: Hurlbutt, J.P., Smith, Centra, Green and Gorski, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed and the indictment is dismissed.
Memorandum: We conclude in these appeals by the People that County Court properly granted those parts of defendants' respective omnibus motions seeking suppression of the physical evidence seized pursuant to a search warrant. "Generally, a warrant to search a subunit of a multiple occupancy structure is void if it fails to describe the subunit to be searched and only describes the larger structure" ( People v Henley, 135 AD2d 1136, 1136, lv denied 71 NY2d 897; see People v Brooks, 54 AD2d 333, 335; see generally People v Rainey, 14 NY2d 35, 37-39). Here, although the investigating police officers possessed information concerning drug activity at a particular apartment within a multifamily dwelling, the warrant identified the areas to be searched as "the entire premises . . ., to include all its storage area and curtilage," and failed to identify the particular apartment by number or occupant ( see Henley, 135 AD2d at 1137). Thus, the court properly concluded that the warrant failed to meet the constitutional requirements of particularity with respect to the description of the place to be searched ( see US Const 4th Amend; NY Const, art I, § 12; Henley, 135 AD2d at 1136; see generally Rainey, 14 NY2d at 37-39), as well as the statutory requirements of particularity ( see CPL 690.15 [a]; 690.45 [5]).