People v. Drain

Appellate Division of the Supreme Court of New York

People v. Drain

135 A.D.2d 1137, 523 N.Y.S.2d 274, 1987 N.Y. App. Div. LEXIS 53006

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 18, 1987

StatusPublished

This text of 135 A.D.2d 1137 (People v. Drain) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Drain, 135 A.D.2d 1137, 523 N.Y.S.2d 274, 1987 N.Y. App. Div. LEXIS 53006 (N.Y. Ct. App. 1987).

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Opinion

— Order unanimously reversed on the law, defendant’s motion to suppress denied, and matter remitted to Erie County Court for further proceedings on the indictment. Memorandum: Although the police illegally seized evidence consisting of cash and a checkbook from defendant’s car, it may be admitted on defendant’s prosecution for perjury allegedly committed after the search (United States v Raftery, 534 F2d 854, cert denied 429 US 862; United States v Turk, 526 F2d 654, cert denied 429 US 823; cf., United States v Ceccolini, 435 US 268; People v McGrath, 46 NY2d 12, cert denied 440 US 972; United States v Paepke, 550 F2d 385). The application of the exclusionary rule in a given context depends on a balancing of its probable effect in deterring police misconduct against the negative impact suppression would have on the truth-finding process (People v McGrath, supra, at 21). Here, suppression would have little deterrent effect since defendant’s subsequent commission of perjury was unforesee[1138]*1138able by the officers who conducted the illegal search (see, United States v Turk, supra, at 667). The evidence is probative and reliable to establish defendant’s commission of perjury (see, United States v Turk, supra). Granting suppression in these circumstances would give defendant a license to commit perjury free from concern that his false statement might be contradicted by the prosecution’s use of the illegally seized evidence (see, United States v Turk, supra; cf., United States v Havens, 446 US 620; Walder v United States, 347 US 62). "[Ejvidence obtained in an illegal search may properly be admitted in the perjury trial of a victim of the search when the alleged perjury occurred after the search and with the knowledge on the part of the victim that the search had taken place” (United States v Turk, supra, at 667). (Appeal from order of Erie County Court, McCarthy, J. — motion to suppress evidence.) Present — Denman, J. P., Boomer, Pine, Balio and Davis, JJ.

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— Order unanimously reversed on the law, defendant’s motion to suppress denied, and matter remitted to Erie County Court for further proceedings on the indictment. Memorandum: Although the police illegally seized evidence consisting of cash and a checkbook from defendant’s car, it may be admitted on defendant’s prosecution for perjury allegedly committed after the search (United States v Raftery, 534 F2d 854, cert denied 429 US 862; United States v Turk, 526 F2d 654, cert denied 429 US 823; cf., United States v Ceccolini, 435 US 268; People v McGrath, 46 NY2d 12, cert denied 440 US 972; United States v Paepke, 550 F2d 385). The application of the exclusionary rule in a given context depends on a balancing of its probable effect in deterring police misconduct against the negative impact suppression would have on the truth-finding process (People v McGrath, supra, at 21). Here, suppression would have little deterrent effect since defendant’s subsequent commission of perjury was unforesee[1138]*1138able by the officers who conducted the illegal search (see, United States v Turk, supra, at 667). The evidence is probative and reliable to establish defendant’s commission of perjury (see, United States v Turk, supra). Granting suppression in these circumstances would give defendant a license to commit perjury free from concern that his false statement might be contradicted by the prosecution’s use of the illegally seized evidence (see, United States v Turk, supra; cf., United States v Havens, 446 US 620; Walder v United States, 347 US 62). "[Ejvidence obtained in an illegal search may properly be admitted in the perjury trial of a victim of the search when the alleged perjury occurred after the search and with the knowledge on the part of the victim that the search had taken place” (United States v Turk, supra, at 667). (Appeal from order of Erie County Court, McCarthy, J. — motion to suppress evidence.) Present — Denman, J. P., Boomer, Pine, Balio and Davis, JJ.

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Bluebook (online)

135 A.D.2d 1137, 523 N.Y.S.2d 274, 1987 N.Y. App. Div. LEXIS 53006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-drain-nyappdiv-1987.

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