A05457 Summary:

BILL NO    A05457 

SAME AS    No same as

SPONSOR    Titus (MS)

COSPNSR    O'Donnell, Fields, Clark, Espaillat, Scarborough, Cook, Wright

MLTSPNSR   Benjamin, Cahill, Colton, Diaz, Gottfried, Heastie, Jaffee, John,
           Nolan

Amd S690.35, CP L

Provides that applicant for a search warrant must disclose all prior denials of
the same or similar application, as well as any prior failure to issue such a
warrant by a different judge, if known to the applicant.

A05457 Actions:

BILL NO    A05457 

02/13/2009 referred to codes
05/05/2009 reported 
05/07/2009 advanced to third reading cal.532
06/10/2009 passed assembly
06/10/2009 delivered to senate
06/11/2009 REFERRED TO RULES
01/06/2010 DIED IN SENATE
01/06/2010 RETURNED TO ASSEMBLY
01/06/2010 ordered to third reading cal.380

A05457 Votes:

BILL: A05457  DATE: 06/10/2009  MOTION:                       YEA/NAY: 132/012

Abbate  Y  Cahill  Y  Englebr Y  Hooper  Y  Maisel  Y  Powell  Y  Skartad Y
Alessi  Y  Calhoun Y  Errigo  Y  Hoyt    Y  Markey  Y  Pretlow Y  Spano   Y
Alfano  Y  Camara  Y  Espaill Y  Hyer-Sp Y  Mayerso Y  Quinn   NO Stirpe  Y
Amedore Y  Canestr Y  Farrell Y  Jacobs  Y  McDonou Y  Rabbitt NO Sweeney Y
Arroyo  ER Carrozz Y  Fields  Y  Jaffee  Y  McEneny Y  Raia    Y  Tedisco Y
Aubry   Y  Castro  Y  Finch   Y  Jeffrie Y  McKevit ER Ramos   Y  Thiele  Y
Bacalle NO Christe Y  Fitzpat Y  John    Y  Meng    ER Reilich Y  Titone  Y
Ball    NO Clark   Y  Gabrysz Y  Jordan  ER Miller  Y  Reilly  Y  Titus   Y
Barclay Y  Colton  Y  Galef   Y  Kavanag Y  Millman Y  Rive J  Y  Tobacco NO
Barra   Y  Conte   Y  Gantt   Y  Kellner Y  Molinar Y  Rive N  Y  Towns   Y
Barron  Y  Cook    Y  Gianari Y  Kolb    Y  Morelle Y  Rive PM Y  Townsen NO
Benedet Y  Corwin  NO Gibson  Y  Koon    Y  Nolan   Y  Robinso Y  Walker  Y
Benjami Y  Crespo  Y  Giglio  NO Lancman Y  Oaks    Y  Rosenth Y  Weinste Y
Bing    Y  Crouch  Y  Glick   Y  Latimer Y  O'Donne Y  Russell ER Weisenb Y
Boyland Y  Cusick  Y  Gordon  Y  Lavine  Y  O'Mara  Y  Saladin Y  Weprin  Y
Boyle   NO Cymbrow Y  Gottfri Y  Lentol  Y  Ortiz   ER Sayward NO Wright  Y
Bradley Y  DelMont Y  Gunther Y  Lifton  Y  Parment Y  Scarbor Y  Zebrows Y
Brennan Y  DenDekk Y  Hawley  Y  Lope PD Y  Paulin  Y  Schimel Y  Mr Spkr Y
Brodsky Y  Destito Y  Hayes   Y  Lope VJ Y  Peoples Y  Schimmi Y
Brook-K Y  Dinowit Y  Heastie Y  Lupardo Y  Peralta Y  Schroed Y
Burling NO Duprey  NO Hevesi  Y  Magee   Y  Perry   Y  Scozzaf Y
Butler  Y  Eddingt Y  Hikind  Y  Magnare Y  Pheffer Y  Seminer Y

A05457 Memo:

 BILL NUMBER:  A5457

 TITLE OF BILL :  An act to amend the criminal procedure law, in
relation to search warrant applications

This is one in a series of measures being introduced at the request of
the Chief Administration Judge upon the recommendation of his Advisory
Committee on Criminal Law and Procedure.

This measure would amend section 690.35(3) of the Criminal Procedure
Law to require that an application for a search warrant disclose all
prior denials of the same or a similar application, as well as any
failure to issue a search warrant based on the same or a similar
application, by a different judge, if known to the applicant.

In  PEOPLE V. BILSKY (95 NY2d 172), the Court of Appeals considered
the question whether the "law of the case" doctrine applies to
successive applications for a search warrant made before two different
Magistrates. In  BILSKY , a New York City Criminal Court Judge was
presented with an application for a search warrant in an ongoing
narcotics investigation. The Judge, after examining the affidavit and
questioning the police officer, signed the warrant, and then
immediately crossed out her signature, explaining to those present
that she was "uncomfortable" about signing the warrant. She gave no
further explanation for her action, but advised the officers that they
could present the warrant application to another Magistrate. The next
day, the prosecution presented the warrant application to a second
Judge, who reviewed the application and signed the warrant. The
supporting affidavit presented to this Judge was identical to the one
given the first Judge, and several sentences had been added to the
application explaining that a prior application had been made to a
different Judge who had crossed out her signature and "encouraged the
People to bring the matter before another magistrate".

The trial court denied the defendant's motion to suppress the illegal
drugs and other contraband recovered following execution of the
warrant, finding "no basis for finding that the second judge did not
act as a neutral magistrate in his review of the application for a
search warrant in this matter". On appeal, the First Department
affirmed, holding that the "law of the case" doctrine "was not
applicable so as to invalidate the warrant that was issued for a
judicially authorized search predicated on a finding of probable
cause" (citing  PEOPLE V. BILSKY , 261 AD2d 174). The Court found that
the circumstances in which the first Judge signed the warrant but then
crossed out her signature and allowed the prosecution to seek out a
second Judge did "not evince a determination of the issues surrounding
the events described in the affidavit" (citing  BILSKY , 261 AD2d
174).

The Court of Appeals affirmed, rejecting defendant's argument that the
"law of the case" doctrine precluded the second Judge from issuing the
otherwise valid warrant. Noting that proper application of the
doctrine "presupposes that legal determinations of a merits nature
have been made or are necessarily implicated," the Court found that
the first judge's striking of her signature "cannot be considered a
legal merits determination that the law enforcement officials failed
to present probable cause". The Court further found that, because
search warrant applications customarily are made exparte, with no
opportunity for the parties to fully litigate the issues, rulings on
these applications are "generally... not the type of determinations to
which the law of the case doctrine are intended to apply".

In upholding the use of successive search warrant applications both in
the case before it and in general, the Court, in  BILSKY , emphasized
that

        disclosure of a prior warrant application is the proper
        and preferred practice; it ought to be followed in the
        presentation of any successive warrant application to
        another neutral Magistrate. Forthright disclosure
        lessens the potential for inappropriate 'Judge
        shopping' and alerts the different Magistrate fully to
        earlier developments, or nondevelopments, so that
        appropriate inquiry and consideration may be given for
        a fully informed judgment and decision on the matter
        at hand  citation omitted .

The Court noted in this regard that CPLR section 2217(b), which has no
analogue in the Criminal Procedure Law, expressly requires that "an ex
parte motion shall be accompanied by an affidavit stating the results
of any prior motion for similar relief and specifying the new facts,
if any, that were not previously shown".

This measure addresses the gap in existing CPL Article 590 identified
in  BILSKY  requiring "forthright disclosure" in a search warrant
application of any and all unsuccessful prior applications to a
different judge where such information is known to the applicant.

This measure, which would have no fiscal impact on the State, would
take effect immediately.

 2001-02 LEGISLATIVE HISTORY :  Senate 2833 (Volker)  Codes
Assembly 8724 (rules, Lentol)  Codes

Reintroduction from previous session (A.8385)