This matter is before the Court following a Mapp hearing which sought the suppression of evidence seized from the defendant's residence. Testifying at the Mapp hearing on March 9, 2007 were Elmira Police Officers, Investigator Richard Weed, Sergeant William Bresser and Captain Joseph Kain. Counsel for all parties requested time to submit memorandum following the hearing and the a transcript of testimony of a confidential informant before Judge Ramich, who issued the search warrant was prepared and submitted for in camera inspection. The same will be marked as a court exhibit and sealed for appellate purposes.

Based upon the evidence received at the hearing, the Court makes the following Findings of Fact and Conclusions of Law.

In connection with a shooting case on Harriet Street in the City of Elmira, Elmira Police developed information that the defendant, Steven Mitchell, was a suspect in the shooting. Police then worked with a confidential informant who stated to police that he was familiar with the defendant. The CI further stated that he had been in Steven Mitchell's apartment within the previous five days and seen Mitchell in possession of hand guns. Police found that the defendant did not possess a license for such weapons.

Investigator Weed and Sgt. Bresser accompanied the CI as they passed the defendant's residence in an unmarked car on the night of December 28, 2006. The CI confirmed that the defendant's residence was in the right side apartment of the building on Jefferson Street, as one looked at the house in front of it. The two officers noted a number on the stair post of the residence as being number 517. Upon being asked by police, the CI specifically identified the door on the far right, or southern most door, as being the defendant's door.

During their pass before the residence, police did not note that while the left hand stair post said number 517, the right hand stair post said number 519. The number 517 referred to the door on the left, while the number 519 referred to the door on the right.

The search warrant application, prepared by Sgt. Bresser, specified the residence to be searched as 517 Jefferson Street. The application noted that this was the right side apartment. Further, the application stated that the number 517 appeared above the door, when in fact it appeared on the stair post and from the pictures admitted into evidence, on the house itself (but not above the door).

Before issuing the search warrant, Elmira City Court Judge Ramich took sworn testimony from the confidential informant (CI). This Court has reviewed in camera the transcript of the [*2]examination of the CI before Judge Ramich and finds the same to be sufficient. Sgt. Bresser advised Judge Ramich that he knew the CI and had been working with him for two weeks. A picture of the defendant was attached to the warrant application and that person was identified by the CI to Judge Ramich as being the defendant; known to him by the street name of "Wiz." Based upon the picture and their investigation, police identified the defendant by his given name. The CI testified that the defendant sold or trafficked in cocaine and that he used firearms for his own personal safety. The CI testified that he had seen the defendant in possession of more than one firearm in his residence. He further stated that the defendant indicated that people had shot at him on Harriett Street, that he had returned fire and that he was going to retaliate for this conduct by shooting them in a public bar room.

Based upon the sworn testimony of the CI and a review of gun licenses, there was reason to believe that the defendant possessed crack cocaine and illegal guns at his apartment. Further, there was reason to believe that the defendant had been involved in the shooting on Harriett Street and that he was seeking retribution for that shooting by himself attacking people with a handgun in the near future.

The warrant states, "YOU ARE HEREBY DIRECTED TO SEARCH: The entire upper and lower right side apartment at 517 Jefferson Street City of Elmira, County of Chemung, State of New York. The residence is further described as a white and gray wood two story multi family apartment house located on the east side of Jefferson Street approximately 150 yards south of the intersection of South Avenue located in the City of Elmira, Chemung County, State of New York The number 517 is located above the front door of the residence. The person of STEVEN S. MITCHELL, date of birth 11/24/77, aka ALRIC BURKE, aka KEVIN SMITH, aka DARREN MOSLEY, aka WIZ, further described as a black male, approximately 5' 07" tall, approximately 160 pounds with brown eyes and black hair and facial hair."

While the warrant was being prepared and acted on by Judge Ramich, Investigator Weed kept the residence under surveillance. During that time Investigator Weed still failed to notice the two numbers on the duplex house.

The warrant was executed by Elmira Police and their swat team. Captain Kain drew a diagram of the apartment with the aid of the CI. Once the swat team was on the porch of the residence, Captain Kain noted that the house had two numbers 517 and 519 Jefferson Street. He brought this to the attention of the team. Investigator Weed at that time told Kain that the CI had identified the far right door as containing the apartment to be searched. Once Investigator Weed confirmed the door identified by the CI, the team entered through that door, executing the search warrant.

Captain Kain testified that at the time he noticed the two numbers on the residence he took seconds to clarify the issue, but testified that since the team was "stacked" on the porch ready to burst in and that waiting or retreat would have been unsafe. He noted that the information was that the defendant possessed firearms and that police required the element of surprise and of a quick entry by an overwhelming force to lessen the danger to officers and residents. Under the circumstances, he felt that any other action would have been unsafe.

The left side apartment was not entered by police.

The defendant and a loaded semi automatic handgun were found inside the right side [*3]apartment. The items seized pursuant to the warrant are set forth on the search warrant inventory, which is a part of People's exhibit number "6" received into evidence at the Mapp hearing.

The Court makes the following conclusions of law based upon the beyond a reasonable doubt legal standard.

No warrant shall issue "but on probable cause, supported by Oaths or affirmations, and particularly describing the place to be searched, and the persons or things to be seized." US Const. amend IV; NY Const. art 1, Section 12. Probable cause "exists when there is a 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 (People v. Marshall, 13 NY2d 28, 34 [1963]; See, People v. Rodger, 28 AD2d 625)[3rd Dept., 1967]." People v. Talutis, 39 AD2d 815 (3rd Dept., 1972), rehearing denied, 40 AD2d 592 (also correcting reference to law and facts to just on the law alone).

"The warrant requirements of both State and Federal Constitutions are designed to protect the privacy of individual citizens from police intrusion unless, in the independent judgment of a neutral and detached Magistrate, there is sufficient information indicating the individual's involvement in criminal activity." People v. Hicks, 38 NY2d 90 (1975)(citing People v. Hanlon, 36 NY2d 549, 558).

Section 690.10 of the Criminal Procedure Law provides as follows:

"Personal property is subject to seizure pursuant to a search warrant if there is reasonable cause to believe that it:

2. Is unlawfully possessed; or

3. . . . is possessed for the purpose of being used, to commit or conceal the commission of an offense against the laws of this state . . .; or

4. Constitutes evidence or tends to demonstrate that an offense was committed in this state . . . or that a particular person participated in the commission of an offense in this state. . ."

The Court finds that the search warrant was properly issued based upon probable cause. Here, Judge Ramich had the opportunity to examine the CI under oath and to make a first hand determination regarding his credibility, reliability and basis of knowledge. People v. Walker, 244 AD2d 796 (3rd Dept., 1997); People v. Tordella, 37 AD3d 500 (2nd Dept, 2007).

We further find that the information forming the basis for the warrant was not stale.

"While there is no time limitation on the revelation of information that leads to the issuance of a search warrant (People v. Acevedo, 175 AD2d 323, 324; see, CPL 690.30), it is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time' (People v. Padilla, 132 AD2d 578, quoting Sgro v. United States, 287 US 206, 210-211). Where as here, the activity is of a continuing nature, a greater time lapse is justified than where the offense is an isolated one (see, People v. Acevedo, supra at 324; People v. Clarke, 173 AD2d 550; People v. Wilkerson, 167 AD2d 662, lv denied, 78 NY2d 958; People v. Tune, 103 AD2d 990)." People v. Mallory, 234 AD2d 913, 914 [*4](4th Dept., 1996), app denied, 89 NY2d 1013 (1997).

Based upon the testimony of the CI that the defendant sold or trafficked in cocaine, that he used firearms for his personal safety, that shots had been fired at him by another group, that he had in fact returned bullet fire, that the CI had seen the defendant in possession of guns in his residence within the past five days, together with information by Sgt. Bresser that the defendant did not have a valid gun license, it was reasonable to expect that evidence of drugs and illegal weapons would still be found in the residence at the time the warrant was issued and executed. There was probable cause to believe that the criminal activity was of a continuing nature.

The provisions of CPL 690.10 were satisfied by probable cause to believe the defendant was in possession of both illegal drugs and illegal weapons. Further, there was probable cause to believe that the defendant had used the illegal drugs to commit crimes and that the guns were, at least in part, possessed in aid of that illegal activity, might connect him with crimes committed on Harriett Street, and were possessed for the purpose of retaliatory crimes of violence yet to be committed. There was a need to secure these illegal weapons before further gunfire erupted in the community. The information possessed by police indicated that the shooting would take place in a public bar room. Such a public gun fight could have led to the death of those intended, as well as to innocent persons who happened to be in the bar.

Clearly, the warrant and the warrant application have some discrepancies regarding the address of the residence to be searched. The warrant and the application list the incorrect house number. The warrant and the warrant application do properly describe the place to be searched by side of the street, distance from the intersection, color of the house, the fact that it was a two story, wood, multi-family apartment house and, most importantly, the fact that the apartment to be searched was the right side apartment. All of that information was correct. Further, the apartment is described as being the residence of the defendant, which was confirmed by police in a drive-by with the CI. It is apparent that police latched onto the first house number that they saw and did not see the other numbers posted on the stair post and on the house.

The Court of Appeals stated as follows in People v. Nieves, 36 NY2d 396, 401 (1975), "(t)his does not mean that hypertechnical accuracy and completeness of description must be attained but rather, from the standpoint of common sense (United States v. Ventresca, 380 U.S. 102, 108; People v. Hendricks, 25 NY2d 129, 137), that the description in the warrant and its supporting affidavits be sufficiently definite to enable the searcher to identify the persons, places or things that the Magistrate has previously determined should be searched or seized."

Both the warrant application and the warrant referred to the premises to be searched as the right side apartment which was occupied by the defendant. Despite the fact that the wrong number was listed, it was the right side apartment occupied by the defendant which was searched.

The bottom line here is that, "there was no reasonable possibility that the wrong premises would be searched regardless of the error contained in the warrant." People v. Graham, 220 AD2d 769, 772 (2nd Dept., 1995), app denied, 89 NY2d 942 (1997). Investigator Weed was present on the scene and he is the one who met with and viewed the outside of the residence with the CI. Weed was the one who heard the CI state that the apartment in question was the right [*5]side apartment. The apartment was supposed to be the apartment occupied by the defendant and in fact the police found the defendant inside of the apartment.

Credit must be given to Captain Kain, who was observant enough, open enough to what he was seeing, and concerned enough with detail to question the situation. It was Kain who saw the two house numbers on the residence. Once Captain Kain noted the discrepancy, the s.w.a.t. team was stacked on the porch, ready to enter the apartment. At that point delaying or retreating might have placed the officers executing the warrant in danger.

At this point Investigator Weed was consulted and assured Captain Kain that the CI had identified the apartment door on the far right as the defendant's residence. This was done before entrance was made by police into the residence.

Under the totality of circumstances, it was reasonable for the police to enter the residence and secure the scene once the team was stacked on the porch. People v. Salgado, 57 NY2d 662 (1982), rehearing denied, 57 NY2d 956 (1982), seems to instruct that the better practice would have been to obtain an amendment of the warrant from Judge Ramich once the scene had been secured and before any search was conducted. This was not done by Elmira police. Despite the fact that police actions were flawed, we do not believe they were so to the extent of being constitutionally impermissible. Once again, we point to the fact that there was no reasonable possibility that the wrong place would be searched under the totality of circumstances.

The Court finds that the constitutional rights of the defendant were not violated and that the evidence seized by police in the execution of the search warrant may be admitted at trial on the People's direct case. The defendant's motion to suppress such evidence is denied.

This constitutes the decision, opinion and order of the Court.

Dated: April 17, 2007_________________________________________

PETER C. BUCKLEY

J.C.C.