MATTER OF CITY OF ROCHESTER

On August 1, 2003, the court granted the City of Rochester's application for several administrative search warrants relating to several rental properties located in the City of Rochester, New York. One of the warrants related to a property located at 345 Flower City Park. Before the warrant was executed, but after the time period for its execution had expired, David Ahl, the owner of 345 Flower City Park, and Steven Kelly, Mr. Ahl's tenant at 345 Flower City Park, moved this court to intervene in this matter, and to reargue and vacate the court's August 1, 2003 decision and order.^[1] Mr. Ahl's and Mr. Kelly's motion to intervene for the purpose of challenging the court's order as it relates to 345 Flower City Park is granted. (See CPLR 1013.) For the reasons discussed below, with one exception that does not affect the core viability of the warrant, intervenors' arguments are without merit. Accordingly, intervenors' motion to vacate the court's August 1, 2003 decision and order is denied.

Intervenors argue, first, that the constitutional principles articulated by the United States Supreme Court in Camara v Municipal Ct. of City & County of San Francisco (387 US 523 [1967]), and the New York Court of Appeals in Sokolov v Village of Freeport (52 NY2d 341 [1981]) do not permit the issuance of an administrative search warrant where, as here, the sole basis for the warrant is the landlord's refusal to permit the City of Rochester to inspect his rental property as required by Code of the City of Rochester former § 90-25 (F) (1). The gist of intervenors' argument is that the probable cause standard requires at least a modicum of evidence that either the property itself, or the surrounding property or neighborhood, violates applicable standards governing the property's or neighborhood's conditions or upkeep. For the reasons discussed in depth in the court's August 1, 2003 decision and order, the court disagrees. The Camara court expressly declared that the requisite probable cause for an provide for the seizure of tangible items should nonetheless provide sufficient information describing how the intangible evidence obtained in the course of the inspection is to be collected. The requested warrant in this matter does not adequately do so. While not a constitutional infirmity, the requested administrative search warrant fails to comply with legal requirements in another respect. Criminal Procedure Law § 690.45 requires a search warrant to contain a specific direction that the warrant must be executed between the hours of 6:00 a.m. and 9:00 p.m., or any other time that is expressly requested and authorized by the court. The warrant submitted for the court's signature omits this required provision.^[4]

For the foregoing reasons, intervenors' motion to vacate the court's August 1, 2003 decision and order is denied. The August 1 decision and order is modified to reflect that the premises at 345 Flower City Park, Rochester, New York, is a single-family residence rather than a "multi-family apartment building." On September 8, 2003, intervenors filed a notice of appeal from the court's August 1, 2003 decision and order. Intervenors request this court to stay its August 1 decision and order, as well as this decision and order, pending their appeal in this matter. Intervenors' request is granted. (See CPLR 5519 [c].)^[5] [1] Intervenors also sought to vacate the administrative search warrant for 345 Flower City Park issued by Judge Teresa Johnson on or about September 11, 2003. Judge Johnson, however, vacated that warrant on September 26, 2003. Accordingly, this component of intervenors' motion is moot. [2] Under the heading of "The Warrant Applications Fail to Establish Probable Cause," intervenors contend that Code of the City of Rochester former § 90-25 (A) (1) (f) violates Multiple Residence Law § 302 insofar as that provision requires certificates of occupancy for single-family residences that are not owner-occupied. (See intervenor's mem of law, at 37-40.) The sole controversy before the court is whether the administrative search warrant requested by the City of Rochester is lawful. Whether Rochester's certificate of occupancy code provisions violate intervenors' rights under state law is an issue that must be raised in a proper separate action. Regardless, the Fourth Department has upheld the legality of Code of the City of Rochester former § 90-25 in Arrowsmith v City of Rochester (309 AD2d 1201 [4th Dept 2003]). [3] Like its criminal counterpart, an administrative search warrant necessarily incorporates the warrant execution requirements of Criminal Procedure Law §§ 690.30 and 690.50. [4] The court notes that the existence of unconstitutionally overbroad provisions in the warrant does not invalidate the entire warrant. To the contrary, "only the fruits of the invalid portion need be suppressed." (People v Brown, 96 NY2d at 85, 87-88.) [5] The court notes the absence of any urgent need to execute the administrative search warrant for 345 Flower City Park. The City of Rochester did not execute the August 1, 2003 administrative search warrant within the available 10-day period, and did not request another search warrant until September 8, 2003. As discussed above, Judge Teresa Johnson signed the second requested warrant on September 11, 2003, but vacated it on September 26, 2003.