Summary
involving a warrant issued while the former Code Crim. Pro., § 792 was effective
Summary of this case from People v. NievesOpinion
Argued December 18, 1974
Decided December 20, 1974
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, FRANCIS X. SMITH, J.
Sturim Nizin for appellant.
Nicholas Ferraro, District Attorney ( Alan M. Snyder of counsel), for respondent.
MEMORANDUM. The order of the Appellate Division should be affirmed. The warrant, based upon an affidavit which alleged that heroin was being used and sold in a specified apartment, authorized a search of that apartment, its lessee and "any other person who may be found to have such property in his possession or under his control or to whom such property may have been delivered". The defendant, who was seen, apprehended and searched as he was exiting the apartment, was within the area and class of individuals authorized to be searched (cf. People v. Marshall, 13 N.Y.2d 28) and, thus his motion to suppress was properly denied. People v. Green ( 33 N.Y.2d 496), relied upon by the defendant, is distinguishable for the warrant involved in that case limited the search area to a specified apartment and persons found "therein". Such is not the case here.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, RABIN and STEVENS concur.
Order affirmed in a memorandum.