1 No. 92
The People &c.,
Respondent,
v.
William Bilsky,
Appellant.
_________________________________________________________________
2000 NY Int. 89
June 29, 2000
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Michael H. Donnelly, for appellant.
Jon Veiga, for respondent.
_________________________________________________________________
BELLACOSA, J.:
The question proffered on this appeal is whether the "law of the case"
doctrine applies when prosecutors make a second application for a
search warrant to a different judge from the one first presented with
the application. We hold that the protocol does not apply, and the
order of the Appellate Division should therefore be affirmed. Notably
in this case and circumstance, the second application contained a
disclosure to the different magistrate, describing the first fruitless
effort.
Over a period of approximately a week and a half, the NYPD Manhattan
Narcotics Unit conducted a surveillance investigation of the sale of
cocaine out of defendant's apartment. An affidavit for a search
warrant for defendant's apartment was then prepared by a police
officer, based on information obtained during the surveillance. On
February 26, 1997, the application was presented to a magistrate in
the New York City Criminal Court. She examined the affidavit, asked
the officer some questions, and signed the warrant. She then
immediately crossed out her signature. She informed the law
enforcement officials that she was "uncomfortable" about signing the
warrant, gave no other explanation, and told them that they could
present it to another magistrate.
The next day, the prosecution submitted the warrant application to a
second magistrate. The supporting affidavit was identical to the one
given to the first Judge, the day before. The application added
SNIPPETS:
The question proffered on this appeal is whether the "law of the case" doctrine applies when
Notably in this case and circumstance, the second application contained a disclosure to the
An affidavit for a search warrant for defendant's apartment was then prepared by a police
On February 26, 1997, the application was presented to a magistrate in the New York City
She then immediately crossed out her signature.
She informed the law enforcement officials that she was "uncomfortable" about signing the
The supporting affidavit was identical to the one given to the first Judge,
Defendant was arrested in his apartment at the time of the seizure and was then charged with
At a hearing on the motion, however, defense counsel informed the court that after filing the
Treating the matter as one for reconsideration, the court then denied the motion.
It stated that defendant had failed to persuade the court that "either law or custom"
The court noted that there was "no basis for finding that did not act as a neutral magistrate
The Appellate Division affirmed the judgment of conviction, secured on a guilty plea after
The court held that the circumstances in which the first magistrate signed the warrant but
A Judge of this Court granted defendant leave to appeal, and we now affirm the Appellate
From that, defendant urges that the second magistrate, as a Judge of coordinate jurisdiction
Recently, in People v Evans (, 94 NY2d 499), this Court plumbed the reach of this doctrine,
We also noted that it "contemplates that the parties had a 'full and fair' opportunity to
These considerations provide strong support for concluding that applications for search
Notably, warrant requirements of the State and Federal Constitutions are designed to place
Thus, our rejection of the law of the case doctrine to this, and generally as to other
We emphasize that disclosure of a prior warrant application is the proper and preferred
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