People v. Alaxanian

OPINION OF THE COURT Herlihy, J. Defendants Thomas Alaxanian and Charles Lanier were [188] indicted for the crimes of robbery in the first degree and assault in the second degree. It was the People’s theory that on August 12, 1978, the defendants and three other men traveled to the home of William Livingston in Berne, New York, where they stole his property, consisting of money and furniture, while using physical force and a dangerous instrument to overcome his resistance. The People’s case was built around the testimony of Jack Reed, who had previously admitted his participation in the events of August 12 and had been allowed to plead guilty to the crime of robbery in the second degree in exchange for his testimony implicating Alaxanian and Lanier, and the evidence obtained as a result of the search warrants. Both defendants attempted to prove that they were not with Reed in Berne, New York, at the time Livingston was robbed. Following a joint trial, Alaxanian and Lanier were found guilty of robbery in the first degree. Alaxanian was given an indeterminate sentence of 8 Vs to 25 years, while Lanier was sentenced as a predicate felon to 12 Vi to 25 years in prison. When the applications were made to the County Court for the issuance of the search warrants in these actions, the police had knowledge that the defendants were the perpetrators of the crime for which they had been convicted; the police knew the address of the defendant as set forth in each search warrant; and they had knowledge that the defendants had stolen personal property from the premises where the crime had been committed. In addition, Investigator Baker stated: "From frequent observation I have observed furniture and other unknown articles going back and forth between these residences. I further observed, based upon frequent observation, that the above-named six individuals are continually in one anothers company and continually move freely between the addresses noted.” The decision of Judge Harris, dated June 20, 1979, in denying the suppression of tangible property, with reference to the issuance of search warrants, stated: "It is the duty of the magistrate in issuing a search warrant to narrow down as much as possible the geographic limits of the area to be searched. Under the circumstances of the instant case, there were no narrower limits to which the search could reasonably have been confined. 3” The numeral "3” identified a footnote, which stated: "The question in the instant case is not that of particularity. The items to be searched for are described with [189] particularity, as well as the places to be searched (namely, 55 Rensselaer Street and 295-331 Ninth Street). The question in the instant case is strictly that of probable cause and reasonableness. There certainly was probable cause to believe that the stolen property was in one of the buildings to be searched or divided among all of them, and the unique interrelationship between the buildings and persons involved in this case made it reasonable to authorize a search in all of these buildings for the very specific stolen property being sought.” It would appear to this court that the police officers requesting the warrants for searching the premises were exercising good judgment based on probable cause, knowing the parties involved and the manner and method of their operations. The warrants were, in our opinion, properly issued. (See People v Magiril, 31 NY2d 802, 803, where search warrants were obtained for two apartments of the defendant; People v Glen, 30 NY2d 252, 259, where the court said: "The ultimate answer to the problem is that as long as the evidence creates substantial probability that the seizable property will be on the premises when searched, the warrant should be sustained.”; People v Wolzer, 41 AD2d 679, 680-681, where the court stated: "The facts presented seem to fit precisely within the rule set forth by Mr. Chief Justice Burger in United States v Harris [403 US 573] when he said at page 583: 'Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions.’ ”; People v Tolentino, 40 AD2d 596-597, where the court stated: "Probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observe as trained officers. [See Smith v. United States, 358 F. 2d 833, 837 (Burger, J.), cert den 386 U. S. 1008.] In dealing with probable cause, we deal with probabilities; these are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. [See Brinegar v. United States, 338 U. S. 160, 175.]”) The dissent seems to argue that such facts and circumstances are sufficient for the issuance of a warrant as to 295-331 Ninth Street, but not so as to 55 Rensselaer Street. As to the disputed portion of the Curtis affidavit, no hearing was required as the undisputed and remaining allegations [190] therein were sufficient to require the issuance of a search warrant to recover stolen property. At the trial, no exceptions were taken to that part of the Judge’s charge which the defendants challenge on this appeal, and further, a reading of the charge, concise and understandable, establishes that the jury had a complete knowledge of the problems involved. The fact that the word "intent” was not uttered is of little import where the facts and circumstances could lead to only one conclusion: that the defendants went to the property with the intent to take whatever was available as a payment against an alleged debt. The Judge charged only one crime, robbery in the first degree, to which there was no objection (People v Sim, 53 AD2d 992, affd 44 NY2d 758). We have examined the other alleged errors and find them to be without merit or, in any event, not sufficient to require a new trial. The judgments should be affirmed.