People v. 3 100 Gallon Stills

New York County Courts

People v. 3 100 Gallon Stills

40 N.Y. Crim. 222, 119 Misc. 635

DecidedDecember 15, 1922

StatusPublished

This text of 40 N.Y. Crim. 222 (People v. 3 100 Gallon Stills) is published on Counsel Stack Legal Research, covering New York County Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. 3 100 Gallon Stills, 40 N.Y. Crim. 222, 119 Misc. 635 (N.Y. Super. Ct. 1922).

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Opinion

Taylor, J.:

This is a motion to vacate a search warrant issued under section 802-b of the Code of Criminal Procedure. The ground of the motion is that the copy of the warrant and notice, delivered to the person from whose possession the property was taken, fails to show the name of the judge who signed the original warrant. Although not á true copy, I am inclined to think that this is one of the remedial errors covered by the amendment provisions of the statute in question. The purpose of delivering a copy of the warrant is to give notice of the forfeiture proceeding, so that the person from whose possession the property is taken may have an opportunity to appear and contest the same. (People v. Diamond, 199 App. Div. 497.) [223]*223Such notice is essential, because obviously an ex parte disposition of property following seizure under search warrant would, in the absence of a conviction of the person from whose possession the goods were taken, violate such person’s constitutional right to due process of law. (Stuart v. Palmer, 74 N. Y. 183; Gilman v. Tucker, 128 id. 190; Coxe v. State, 144 id. 396; Colon v. Lisk, 153 id. 188; Matter of Grout, 105 App. Div. 98.)

However, the notice in this case contained all information necessary t,o enable the person from whom the goods were taken to attend and contest the forefeiture proceeding. The omission in the copy of the judge’s signature is a purely technical error. The proceeding being statutory, that omission might nevertheless furnish ground for an order vacating the warrant, were it not for the following saving provision in the statute: “ Such proceeding shall be heard and be‘determined upon the merits and shall not be dismissed of any technical defect, which may be corrected by amendment.” (See also People v. Wicka, 117 Misc. Rep. 364; Matter of Holcomb, Id. 356.) The amendment may be supplied by serving a new notice fixing another date for the hearing.

Motion denied.

Ordered accordingly.

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Taylor, J.:

This is a motion to vacate a search warrant issued under section 802-b of the Code of Criminal Procedure. The ground of the motion is that the copy of the warrant and notice, delivered to the person from whose possession the property was taken, fails to show the name of the judge who signed the original warrant. Although not á true copy, I am inclined to think that this is one of the remedial errors covered by the amendment provisions of the statute in question. The purpose of delivering a copy of the warrant is to give notice of the forfeiture proceeding, so that the person from whose possession the property is taken may have an opportunity to appear and contest the same. (People v. Diamond, 199 App. Div. 497.) [223]*223Such notice is essential, because obviously an ex parte disposition of property following seizure under search warrant would, in the absence of a conviction of the person from whose possession the goods were taken, violate such person’s constitutional right to due process of law. (Stuart v. Palmer, 74 N. Y. 183; Gilman v. Tucker, 128 id. 190; Coxe v. State, 144 id. 396; Colon v. Lisk, 153 id. 188; Matter of Grout, 105 App. Div. 98.)

However, the notice in this case contained all information necessary t,o enable the person from whom the goods were taken to attend and contest the forefeiture proceeding. The omission in the copy of the judge’s signature is a purely technical error. The proceeding being statutory, that omission might nevertheless furnish ground for an order vacating the warrant, were it not for the following saving provision in the statute: “ Such proceeding shall be heard and be‘determined upon the merits and shall not be dismissed of any technical defect, which may be corrected by amendment.” (See also People v. Wicka, 117 Misc. Rep. 364; Matter of Holcomb, Id. 356.) The amendment may be supplied by serving a new notice fixing another date for the hearing.

Motion denied.

Ordered accordingly.

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40 N.Y. Crim. 222, 119 Misc. 635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-3-100-gallon-stills-nycountyct-1922.

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