Opinion
October 22, 1991
Appeal from the Supreme Court, New York County, Leslie Crocker Snyder, J.
Pursuant to the execution of a search warrant of defendant's home, the police recovered over 8 pounds of cocaine, a loaded machine gun, two handguns and over 100 rounds of automatic ammunition hidden underneath the floorboards of his bedroom closet. Thereafter, the People moved for a protective order denying disclosure to the defense of the affidavit supporting the search warrant on the ground that this information might reveal the identity of the confidential informant and pose a safety risk to the individual's life. The court, applying procedure set forth in People v. Seychel ( 136 Misc.2d 310), examined the application for the search warrant, ex parte and in camera, and determined that it set forth probable cause for the search and was not perjurious on its face. The court also conducted an in camera review of the testimony in support of the search warrant and concluded that the informant's life or future investigations would be jeopardized by disclosures of the materials sought by the defense. The court then determined that the warrant could not be turned over to the defense in redacted form. Finally, the court held a Darden-type inquiry hearing ex parte and in camera where the credibility of the affiant was established, and where the defense claim that the warrant was tainted by a prior illegal entry into his apartment was dispelled. We find that the court's in camera and ex parte review procedure and denial of defendant's discovery request of the search warrant affidavit was entirely proper under the instant circumstances. (See, People v. Seychel, supra.)
Contrary to the People's argument, the issue of the court's procedure in the handling of defendant's motion to suppress and request for discovery of the search warrant application, is preserved for appellate review (see, CPL 710.70; cf. People v. Varon, 168 A.D.2d 349).
Concur — Milonas, J.P., Ellerin, Asch and Rubin, JJ.