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PEOPLE v. SEGNA
158 Misc.2d 35 (1993)
600 N.Y.S.2d 615
The People of the State of New York, Plaintiff,
v.
Louis Segna, Defendant.
Supreme Court, Kings County.
January 26, 1993
Legal Aid Society, Brooklyn (Robert Baum and Vincent J. Romano of counsel), for defendant. Charles J. Hynes, District Attorney of Kings County (Steven D. Kramer of counsel), for plaintiff.
IntroductionDefendant is the subject of a nine-count indictment charging various violations of article 265 of the Penal Law for unlawful possession of homemade explosive devices and a rifle in his home at 167 North 7th Street, Brooklyn. He has moved to suppress all the contraband to be offered against him at trial on the grounds that it was acquired as a result of a warrantless and unlawful entry, search and seizure at his home. The prosecution originally opposed the motion by affirming that the search occurred during the execution of a lawful order of eviction against defendant, described as a "squatter" at the premises. This persuaded a previous Justice of this court to deny defendant's motion summarily, with leave to renew upon "new facts." After reargument, I ordered an evidentiary hearing, which was conducted over the course of four sessions in November 1992, and consisted of the testimony of a police sergeant, a City Housing Preservation and Development (HPD) manager, an ASPCA agent and the defendant. Based on that record and the posthearing briefs of counsel, the court now renders a decision, embodying findings of fact and conclusions of law which follow. The FactsFirst, it is now undisputed that there never was any court order or warrant of eviction affecting these premises at the time in question, nor did the ASPCA ever obtain any type of warrant or other lawful court order to investigate or prevent
cruelty to animals at the premises.1 What really happened was that the ASPCA received a complaint about mistreatment of a dog at the premises on or about January 28, 1991. During their routine investigation of this complaint, ASPCA agents went to the premises the next day and heard a barking dog. Because no one answered, they interviewed the next door neighbor, the source of the complaint. She identified the occupant, told them that HPD was the owner and that animals roamed in the backyard under foul conditions. ASPCA's next move was to contact HPD, request written proof that HPD was the owner of 167 North 7th Street, and insist that HPD grant them access to those premises. The assigned HPD property manager had no keys to the premises and did not believe any HPD official had ever been inside the house. She agreed to cooperate with the ASPCA, however, by providing a letter of City ownership and by meeting the agents at the address on February 4, 1991 to help them gain access. No one took any steps to obtain the occupant's consent to enter (except by knocking on the door on two occasions), or to seek lawful Criminal or Civil Court authorization to take action.
1. See, Agriculture and Markets Law § 372, which provides for the issuance of warrants, upon sworn application to a criminal court, to search and arrest for violations of the laws against cruelty to animals; see also, People v Linder, 156 Misc.2d 417 (Crim Ct, Richmond County). 2. Clearly, the defendant's demonstrated long-term relationship to the premises could only have been lawfully terminated by his consensual act or by a judgment of a court of competent jurisdiction. (See generally, RPAPL 711, 713.) 3. The majority of the "apparent authority" cases which cite Adams (supra) involve situations where the person giving consent has some relationship with the defendant or connection with the premises searched. (See generally, People v Thomas, 175 A.D.2d 188 [2d Dept 1991], lv denied 79 N.Y.2d 865 [1992] [consent by defendant's sister who lived with him]; People v Teage, 173 A.D.2d 878 [2d Dept 1991], lv denied 78 N.Y.2d 1081 [1991] [consent by an employee left in charge of a service station]; People v Adames, 168 A.D.2d 623 [2d Dept 1990]; People v Mills, 159 A.D.2d 520 [2d Dept 1990], lv denied 76 N.Y.2d 739 [1990] [consent by occupants of an apartment]; People v George, 150 A.D.2d 486 [2d Dept 1989], lv denied 74 N.Y.2d 809 [1989] [consent by defendant's wife]; People v Snow, 128 A.D.2d 564 [2d Dept 1987] [daughter of boarding house owner may consent to search of common area].) 4. Not even a civil eviction warrant (the prosecution's original, but erroneous reason for this search) would cause a tenant to forfeit all reasonable expectations of privacy in leased premises, nor can the eviction process be converted into a warrant for a general search of such premises. (People v Ponto, supra, at 577; People v Stadtmore, 52 A.D.2d 853 [2d Dept 1976] supra; but see, People v Davis, 169 A.D.2d 16 [2d Dept 1991], lv denied 79 N.Y.2d 826 [1991], clarifying and limiting defendant's expectation of privacy during eviction.)
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