Greene child porn warrant tossed for cop, judge errors

ALBANY (AP) – New York’s highest court on Tuesday threw out the warrant used to convict a Greene man of possessing child pornography, concluding a state trooper wrote the name of a “non-existent town” and a local justice signed it with an illegible scrawl.

The Court of Appeals said the warrant failed to comply with the requirement to identify the court that issued it, concluding the requirement preserves a citizen’s constitutionally guaranteed right. The five judges granted a defense motion to suppress the evidence against John M. Gavazzi of the village of Greene in Chenango County.

The trooper had typed “Local Criminal Court, Town of Broome, Broome County.” There is a town of Broome, though it is in Schoharie County. A justice signed the warrant without correcting it.

“Here, the village justice who signed the warrant included no designation of his court, his signature is illegible, there is no seal, and the caption typed by the trooper refers to a nonexistent town,” the five judges concluded. “While it is clear that the warrant directs Village of Greene police officers to search a house in Greene, there is no indication whatsoever which of the several courts that have authority to issue warrants in the village of Greene issued the warrant permitting the search.”



In a dissent, Judge Robert Smith said the requirement to have the name of the court issuing the warrant is essentially a formality, and that “sloppiness” is regrettable but doesn’t endanger anyone’s liberty.

“The suppression of evidence is a drastic remedy – one that increases the likelihood of, if it does not guarantee, an unjust result,” Smith wrote. He then cited a 1926 decision by Judge Benjamin Cardozo, who went on to the U.S. Supreme Court. “Very often it means, in the famous phrase of our most famous predecessor, that ‘the criminal is to go free because the constable has blundered.’”

Chenango County District Attorney Joseph McBride said he and his staff are in tune with Smith’s dissent, and the warrant contained all the important facts to establish probable cause to issue the warrant.

“There was substantial compliance. The error did not in any way violate the defendant’s constitutional rights. ... There was never an issue whether or not he possessed the child porn,” he said.

McBride and defense attorney John Cameron both said Tuesday’s ruling ends the prosecution.

Gavazzi had pleaded guilty to promoting and possessing a sexual performance by a child, though Cameron said he was trying to withdraw it. The judge denied his motion to suppress the evidence. A midlevel court reversed the ruling, and the top court agreed Tuesday.

“Police and the courts are going to have to be a little bit more aware of what the contents of their search warrants would be,” Cameron said. “There’s a right of privacy here, there’s a right to avoid a search and seizures which are not reasonable.”

“Here it had the wrong town, the wrong county. We didn’t know who the judge was. We just didn’t know anything,” Cameron said. “They’ve got to be held to some standards.”

Today's Other Stories



© 2014 Snyder Communications/The Evening Sun
29 Lackawanna Avenue, Norwich, NY 13815 - (607) 334-3276
We're on Facebook