Opinion
May 31, 1967
Appeal from a judgment of the County Court, St. Lawrence County, rendered upon a plea of guilty, convicting the appellant of violating section 1751-a of the Penal Law and from orders of that court disallowing appellant's demurrer to the indictment, denying his motion for an order permitting him to examine the Grand Jury minutes and denying his motion to suppress certain evidence allegedly obtained by an invalid search warrant. On April 22, 1966, the appellant was arrested in the Village of Potsdam, New York, on a felony charge of violating section 1751 of the Penal Law (violations of the public health law with respect to narcotic drugs). The appellant's arrest resulted from a search of appellant's room at the Arlington Inn, Potsdam, New York, made under a search warrant issued by a Village Police Justice on April 21, 1966. This search warrant was based upon two affidavits; one by Malcolm MacGregor, a police officer of the Village of Potsdam; the other by one John Bela Bordas. At a hearing before the Police Justice on May 14, 1966 the charge against appellant was dismissed, but he was immediately rear-rested on a bench warrant issued following his indictment by the St. Lawrence County Grand Jury on charges of felony narcotics violation under section 1751 (subds. 2, 3, par. [b]) of the Penal Law. After the denial of the motions which form the basis of this appeal, appellant pleaded guilty to a misdemeanor violation of section 1751-a and was sentenced and served six months in the County Jail. Appellant initially asserts that his motion to suppress should have been granted because the search warrant was not issued on probable cause (Code Crim. Pro., § 794). As to when probable cause exists, the Court of Appeals in People v. Marshall ( 13 N.Y.2d 28, 34-35) stated: "Probable cause exists when there is reasonable ground of suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious man in the belief that the law is being violated on the premises to be searched ( Carroll v. United States, 267 U.S. 132; Dumbra v. United States, 268 U.S. 435; Aderhold v. United States, 132 F.2d 858). It is not a matter for technical rules or tight and exact definition. The question always is: What in the common judgment of reasonable men would be regarded as good, sound cause, remembering that we seek only probable, not absolute cause? Only the `unreasonable' searches and the warrants signed without `probable cause' are forbidden by the Fourth Amendment. `We are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant' ( Dumbra v. United States, 268 U.S. 435, 441, supra; Henry v. United States, 361 U.S. 98, 102). Whether probable cause is present in a particular case must be determined from the facts of that case ( United States v. Ramirez, 279 F.2d 712, 714, cert. den. 364 U.S. 850)." In our opinion the factual averments in Bordas' affidavit to the effect that appellant told him he used marihuana, that on several occasions he had seen appellant roll and smoke marihuana cigarettes and that appellant kept marihuana in his room at the Arlington Inn when buttressed by indications from MacGregor's affidavit that Bordas could correctly identify marihuana are sufficient so that the Magistrate could have found this test met. Appellant asserts, however, that Bordas' assertion should not have been accepted and relied on by the Magistrate because Bordas was not a reliable witness. Issues of credibility and reliability are primarily questions for the judicial officer issuing the warrant, and we find advanced here by appellant no assertions which would be so compelling as to require us to disturb his determination. Nor do we believe in the instant case where there is no allegation of perjury (cf., People v. Alfinito, 16 N.Y.2d 181), that a hearing as to Bordas' reliability was required. Secondly, since we perceive appellant's purpose in wishing to inspect the Grand Jury minutes to be primarily to determine if the search warrant results were presented to the Grand Jury, we find no abuse of discretion in the denial of that request. Finally, we are presented with the contention that section 1751-a is unconstitutional as violative of section 16 of article III of the New York State Constitution. Section 16 of article III reads: "No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act." Section 1751-a reads in pertinent part: "Any person who shall violate any provision of article thirty-three of the public health law, other than as specified in section seventeen hundred fifty-one, shall be guilty of a misdemeanor". The County Court, after a comprehensive and complete analysis of the case law dealing with section 16 of article III concluded that there was no violation and we believe correctly so. Any other interpretation would hold numerous provisions of present Penal Law invalid. Judgment and orders affirmed. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Reynolds, J.