        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

691
KA 11-00065
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

MICHAEL D. COOK, DEFENDANT-RESPONDENT.


SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Monroe County Court (Patricia D.
Marks, J.), dated November 22, 2010. The order, insofar as appealed
from, granted that part of the omnibus motion of defendant seeking to
suppress certain physical evidence.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law, that part of the omnibus motion to
suppress certain physical evidence is denied, and the matter is
remitted to Monroe County Court for further proceedings on the
indictment.

     Memorandum: The People appeal from an order granting that part
of defendant’s omnibus motion to suppress physical evidence seized
from behind the storefront area of premises that were searched
pursuant to a search warrant. On August 26, 2009, a court issued a
warrant authorizing the search of “1304 Dewey Avenue, Rochester, NY.”
The warrant application was obtained based upon information that
defendant was producing counterfeit checks at that address. Both the
warrant and the application therefor identified the premises by
setting forth the address and by describing the location in detail as,
inter alia, “a business store front style building that has a
predominantly glass front.” The items to be searched for and seized
included “computers, . . . peripheral accessories . . . , software,
data files, . . . disks, . . . or other computer storage media related
to the making of, possession of Counterfeit Checks or counterfeit
commercial instruments . . . as well as any and all check stock paper
or paper used to produce checks and any computer software used in the
production of checks.” The warrant was executed the same day it was
issued and items described in the warrant were seized during the
search. Several officers involved in the warrant’s execution
testified at the suppression hearing that some of the evidence seized
was found in a series of interconnected rooms located behind the
                                 -2-                           691
                                                         KA 11-00065

storefront area of the subject premises.

     We agree with the People that County Court erred in suppressing
evidence seized from behind the storefront area of the property. The
Federal and State Constitutions provide that warrants shall not be
issued except “upon probable cause . . . and particularly describing
the place to be searched, and the persons or things to be seized” (US
Const 4th Amend; NY Const, art I, § 12; see People v Fulton, 49 AD3d
1223, 1223-1224; People v Henley, 135 AD2d 1136, 1136, lv denied 71
NY2d 897). “Particularity is required in order that the executing
officer can reasonably ascertain and identify . . . the persons or
places authorized to be searched and the things authorized to be
seized” (People v Nieves, 36 NY2d 396, 401). Nevertheless, that “does
not mean that hypertechnical accuracy and completeness of description
must be attained but rather, [it means] from the standpoint of common
sense . . . that the descriptions in the warrant and its supporting
affidavits [must] be sufficiently definite to enable the searcher to
identify the persons, places or things that the [court] has previously
determined should be searched or seized” (id.).

     We agree with the People that the warrant sufficiently described
the premises to be searched (see generally Nieves, 36 NY2d at 401).
Although “a warrant to search a subunit of a multiple occupancy
structure is void if it fails to describe the subunit to be searched
and . . . describes [only] the larger structure” (Henley, 135 AD2d at
1136), here the series of interconnected rooms were not “subunits,”
but were instead part of the single rental unit comprising 1304 Dewey
Avenue. Moreover, we conclude that the purpose of the language in the
warrant describing the property as a “business store front style
building” was to identify and describe the premises; that language was
not intended to limit the scope of the search to only the storefront
area of the premises. Thus, the officers executing the warrant did
not exceed the scope of the warrant by seizing items from the rooms
behind the storefront area. Contrary to the court’s conclusion, the
hearing testimony established that the areas where items were seized,
although separate from the storefront area, were part of the property
authorized to be searched (see generally People v Marshall, 13 NY2d
28, 32-33; People v Brito, 11 AD3d 933, 935, appeal dismissed 5 NY3d
825; People v Watson, 254 AD2d 701, 701, lv denied 92 NY2d 1055;
People v Santarelli, 148 AD2d 775, 775-776). We therefore reverse the
order insofar as appealed from and deny defendant’s omnibus motion to
the extent that it sought suppression of physical evidence seized from
behind the storefront area.




Entered:   July 5, 2013                        Frances E. Cafarell
                                               Clerk of the Court
