People v. Vara

117 A.D.2d 1013, 499 N.Y.S.2d 296, 1986 N.Y. App. Div. LEXIS 53262

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant pleaded guilty to criminal possession of a controlled substance in the third degree following the denial of his suppression motion. On appeal, he claims that the warrant authorizing the search of his residence was not based on probable cause nor was it properly executed. In our view, the warrant to search his residence was properly issued although the written warrant application was limited to a search of his car. The scope of the application was broadened to include his dwelling by the testimony adduced in support of the written application (see, People v Hanlon, 36 NY2d 549, 559). He contends further that the police failed to execute the warrant before 9:00 p.m., as required by it and CPL 690.30. From our examination of the record we conclude that the suppression court properly found that the search was commenced at 8:50 p.m., and the testimony upon which it relied cannot be deemed " 'incredible as a matter of law’ ” (People v Smith, 77 AD2d 544, 546; see, People v Garafolo, 44 AD2d 86, 88, revd on remand 48 AD2d 906). Matters of credibility are to be resolved by the trier of fact, who is in the best position to observe the various witnesses and evaluate their respective testimony (see, People v Velazquez, 104 AD2d 761, 762, affd 64 NY2d 1118). Moreover, a search properly begun before 9:00 p.m., need not be terminated if it extends after that time. The statutory requirement that search warrants may be executed only between the hours of 6:00 a.m., and 9:00 p.m., unless the warrant expressly provides otherwise, was meant to protect individuals from "the special threat to privacy presented by nighttime police intrusions” (2 LaFave, Search and Seizure § 4.7, at 118), and not to establish an arbitrary cutoff on searches properly commenced. (Appeal from judgment of Chautauqua County Court, Adams, J.—criminal possession of controlled substance, third degree.) Present—Callahan, J. P., Denman, Boomer, O’Donnell and Schnepp, JJ.