Opinion
January 27, 1992
Appeal from the Supreme Court, Kings County (Egitto, J.).
Ordered that the judgment is reversed, on the law, that branch of the defendant's omnibus motion which was to suppress physical evidence is granted, and the matter is remitted to the Supreme Court, Kings County, for further proceedings.
The physical evidence which the defendant sought to suppress was recovered during the nighttime search of the defendant's residence upon the execution of a search warrant. The warrant was issued on the basis of an informant's information that the defendant possessed a large number of stolen televisions, stereos, and radios. The warrant application detailed sufficient information to establish the informant's reliability and his basis of knowledge, such that probable cause for the search was demonstrated (see, People v. Griminger, 71 N.Y.2d 635; People v Hanlon, 36 N.Y.2d 549), and adequately particularized the place and person to be searched (see, Maryland v. Garrison, 480 U.S. 79; People v. Nieves, 36 N.Y.2d 396). Further, the few misstatements and omissions in the warrant application did not vitiate the finding of probable cause, since they did not cast doubt on the informant's reliability (see, People v. Ronning, 137 A.D.2d 43), and the remainder of the application was sufficient to establish probable cause (see, Franks v. Delaware, 438 U.S. 154, 171-172).
However, the defendant's rights were violated because the search occurred at 4:15 A.M. No basis for the nighttime search was alleged in the warrant application, and there was no actual need for the police to execute the warrant at night. In New York, a nighttime search for the purpose of seizing designated property or kinds of property is authorized only when the application alleges that the warrant: (1) "cannot be executed between 6:00 A.M. and 9:00 P.M.", or (2) the property to be seized "will be removed or destroyed if not seized forthwith" (CPL 690.35 [a] [i], [ii]). Although the failure to comply with the procedural requirements for obtaining a nighttime search warrant does not justify the suppression of the evidence where there exists a basis for the nighttime search (see, People v Silverstein, 74 N.Y.2d 768, cert denied 493 U.S. 1019; People v Rose, 31 N.Y.2d 1036), in this case, where there does not exist any basis for the nighttime search, the search was invalid and the evidence must be suppressed (see, United States v. Searp, 586 F.2d 1117, 1125, cert denied 440 U.S. 921; see also, People v Dyla, 142 A.D.2d 423 [exclusionary rule applies to evidence obtained during an unreasonable search]; United States ex rel. Boyance v. Myers, 398 F.2d 896 [nighttime searches authorized only under exceptional circumstances]; Jones v. United States, 357 U.S. 493 [a nighttime intrusion into a private home is a severe invasion of privacy]; Wolf v. Colorado, 338 U.S. 25 [4th Amend forbids the admission of evidence obtained in an unreasonable search and seizure]). Balletta, J.P., Miller, Ritter and Copertino, JJ., concur.