Summary
issuing court took oral testimony but failed to record the testimony as required by CPL § 690.40
Summary of this case from People v. VillegasOpinion
Argued June 5, 1997
Decided July 2, 1997
Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department.
John A. Cirando, Syracuse, Ivette Iza Zenner and Jacqueline B. Jones for appellant.
Jerome J. Richards, District Attorney of St. Lawrence County, Canton ( Ramona L. Rabeler of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
On appeal, defendant contends that, even if the written search warrant application in this case was sufficient under CPL 690.35, it was rendered insufficient if the issuing court took oral testimony and failed to record that testimony as required by CPL 690.40 (1).
In the absence of any specific proof, the law presumes that the statutory requirements were satisfied. Under this "presumption of regularity" the law further presumes that no official or person acting under an oath of office will do anything contrary to his official duty, or omit anything which his official duty requires to be done. Substantial evidence is necessary to overcome that presumption. There is no such substantial evidence in this case.
We do not reach the argument raised by the People, that the filing of witnesses' testimonial affidavits can constitute "substantial compliance" with the recordation, requirements of CPL 690.40 (1) under our holding in People v Taylor ( 73 N.Y.2d 683, 688-689). We have considered the remaining contentions of defendant and conclude that they are without merit.
Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur.
Order affirmed in a memorandum.