SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

691 

KA 11-00065 

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT, 

V MEMORANDUM AND ORDER

MICHAEL D. COOK, DEFENDANT-RESPONDENT.

 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF

COUNSEL), FOR APPELLANT. 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF

COUNSEL), FOR DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Monroe County Court (Patricia D.

Marks, J.), dated November 22, 2010. The order, insofar as appealed

from, granted that part of the omnibus motion of defendant seeking to

suppress certain physical evidence. 

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law, that part of the omnibus motion to

suppress certain physical evidence is denied, and the matter is

remitted to Monroe County Court for further proceedings on the

indictment. 

Memorandum: The People appeal from an order granting that part

of defendant’s omnibus motion to suppress physical evidence seized

from behind the storefront area of premises that were searched

pursuant to a search warrant. On August 26, 2009, a court issued a

warrant authorizing the search of “1304 Dewey Avenue, Rochester, NY.” 

The warrant application was obtained based upon information that

defendant was producing counterfeit checks at that address. Both the

warrant and the application therefor identified the premises by

setting forth the address and by describing the location in detail as,

inter alia, “a business store front style building that has a

predominantly glass front.” The items to be searched for and seized

included “computers, . . . peripheral accessories . . . , software,

data files, . . . disks, . . . or other computer storage media related

to the making of, possession of Counterfeit Checks or counterfeit

commercial instruments . . . as well as any and all check stock paper

or paper used to produce checks and any computer software used in the

production of checks.” The warrant was executed the same day it was

issued and items described in the warrant were seized during the

search. Several officers involved in the warrant’s execution

testified at the suppression hearing that some of the evidence seized

was found in a series of interconnected rooms located behind the
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KA 11-00065 

storefront area of the subject premises. 

We agree with the People that County Court erred in suppressing

evidence seized from behind the storefront area of the property. The

Federal and State Constitutions provide that warrants shall not be

issued except “upon probable cause . . . and particularly describing

the place to be searched, and the persons or things to be seized” (US

Const 4th Amend; NY Const, art I, § 12; see People v Fulton, 49 AD3d

1223, 1223-1224; People v Henley, 135 AD2d 1136, 1136, lv denied 71

NY2d 897). “Particularity is required in order that the executing

officer can reasonably ascertain and identify . . . the persons or

places authorized to be searched and the things authorized to be

seized” (People v Nieves, 36 NY2d 396, 401). Nevertheless, that “does

not mean that hypertechnical accuracy and completeness of description

must be attained but rather, [it means] from the standpoint of common

sense . . . that the descriptions in the warrant and its supporting

affidavits [must] be sufficiently definite to enable the searcher to

identify the persons, places or things that the [court] has previously

determined should be searched or seized” (id.).

We agree with the People that the warrant sufficiently described

the premises to be searched (see generally Nieves, 36 NY2d at 401). 

Although “a warrant to search a subunit of a multiple occupancy

structure is void if it fails to describe the subunit to be searched

and . . . describes [only] the larger structure” (Henley, 135 AD2d at

1136), here the series of interconnected rooms were not “subunits,”

but were instead part of the single rental unit comprising 1304 Dewey

Avenue. Moreover, we conclude that the purpose of the language in the

warrant describing the property as a “business store front style

building” was to identify and describe the premises; that language was

not intended to limit the scope of the search to only the storefront

area of the premises. Thus, the officers executing the warrant did

not exceed the scope of the warrant by seizing items from the rooms

behind the storefront area. Contrary to the court’s conclusion, the

hearing testimony established that the areas where items were seized,

although separate from the storefront area, were part of the property

authorized to be searched (see generally People v Marshall, 13 NY2d

28, 32-33; People v Brito, 11 AD3d 933, 935, appeal dismissed 5 NY3d

825; People v Watson, 254 AD2d 701, 701, lv denied 92 NY2d 1055;

People v Santarelli, 148 AD2d 775, 775-776). We therefore reverse the

order insofar as appealed from and deny defendant’s omnibus motion to

the extent that it sought suppression of physical evidence seized from

behind the storefront area. 

Entered: July 5, 2013 Frances E. Cafarell

Clerk of the Court