PEOPLE v. FULTON (2008)

 We conclude in these appeals by the People that County Court properly granted those parts of defendants' respective omnibus motions seeking suppression of the physical evidence seized pursuant to a search warrant.  “Generally, a warrant to search a subunit of a multiple occupancy structure is void if it fails to describe the subunit to be searched and only describes the larger structure” (People v. Henley, 135 A.D.2d 1136, 1136, 523 N.Y.S.2d 258, lv. denied 71 N.Y.2d 897, 527 N.Y.S.2d 1007, 523 N.E.2d 314;  see People v. Brooks, 54 A.D.2d 333, 335, 388 N.Y.S.2d 450;  see generally People v. Rainey, 14 N.Y.2d 35, 37–39, 248 N.Y.S.2d 33, 197 N.E.2d 527).  Here, although the investigating police officers possessed information concerning drug activity at a particular apartment within a multifamily dwelling, the warrant identified the areas to be searched as “the entire premises ․, to include all its storage area[ ] and curtilage,” and failed to identify the particular apartment by number or occupant (see Henley, 135 A.D.2d at 1137, 523 N.Y.S.2d 258).  Thus, the court properly concluded that the warrant failed to meet the constitutional requirements of particularity with respect to the description of the place to be searched (see U.S. Const. 4th Amend.;  N.Y. Const., art. I, § 12;  Henley, 135 A.D.2d at 1136, 523 N.Y.S.2d 258;  see generally Rainey, 14 N.Y.2d at 37–39, 248 N.Y.S.2d 33, 197 N.E.2d 527), as well as the statutory requirements of particularity (see CPL 690.15[1][a];  690.45[5] ).

It is hereby ORDERED that the order so appealed from is unanimously affirmed and the indictment is dismissed.

MEMORANDUM: