People v. Ricken

29 A.D.2d 192, 287 N.Y.S.2d 118, 1968 N.Y. App. Div. LEXIS 4690

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 1968
• Status: Published

Opinions

Staley, Jr., J.

This is an appeal from an order of the County Court of Schenectady County entered April 15, 1966, which declared illegal and void certain searches and seizures made pursuant to search warrants, and precluding the People from using the evidence obtained thereby in both of the above-entitled actions.

The search warrants were issued on July 14, 1965 by the Honorable John F. Dwyer, Justice of the Supreme Court at the City of Buffalo, Erie County, New York. In the Bichen case the application for the warrant was made by Investigator Thomas J. O’Hea of the New York State Police, and in the Oallietta case the application was made by Investigator Joseph V. Karas of the New York State Police. Neither Investigator O’Hea nor Karas appeared before Justice Dwyer, the applications having been submitted to him by Investigator John Creagan of the New York State Police. The affidavits of the applicants were sworn to before a' Notary Public.

Section 794 of the Code of Criminal Procedure provides in part that “ The person seeking the warrant shall appear personally before the judge, justice or magistrate who may, before issuing the warrant, examine, on oath, the person seeking the warrant and any witnesses he may produce, and must take the affidavit or deposition of the person seeking the warrant.”

Although it is recognized that the words “shall ” and “ must ” when found in a statute are not always imperative (Munro v. State of New York, 223 N. Y. 208; Matter of State of New York, 207 N. Y. 582), “in the absence of ameliorating or qualifying language or showing of another purpose, the word ‘ shall ’ is deemed to be mandatory.” (Matter of Mulligan v. Murphy, 19 A D 2d 218, 223.)

In our opinion the use of the words “ shall appear ” in section 794 intended a mandate to the applicant for the warrant to personally appear before the issuing Judge, Justice, or Magistrate. In the instant cases the applicants were Investigator O’Hea and Investigator Karas. Neither appeared before Justice Dwyer. This failure to comply with the statute renders the search warrants illegal and void.

The cases of People v. Sullivan (40 Misc 2d 278) and Matter of Kirkpatrick (223 N. Y. S. 2d 886) are not to the contrary. They merely hold that the depositions of supporting witnesses need not be sworn to before the issuing Judge or Justice, and that it is not mandatory for the affiant witnesses as distinguished from the applicant, to appear personally before the issuing Judge, Justice or Magistrate. To the same effect is the case of People v. Mancinelli (50 Misc 2d 952) where the affidavit upon which the warrant was based was sworn to before a Notary Public, but the affiant did, in fact, appear before the issuing Magistrate when the warrant was signed.

Our conclusion being that the search warrants were illegal and void, it is not necessary for us to reach the other questions raised by the People, and for the same reason, we do not reach the constitutional question concerning the underlying wire tap order raised by the defendants.

The order should be affirmed.