Opinion
December 29, 1975
Appeal by defendant from a judgment of resentence of the Supreme Court, Kings County, rendered May 14, 1975, convicting him of promoting gambling in the first and second degrees, upon a jury verdict, and imposing sentence. The appeal also brings up for review an order of the same court, dated October 9, 1974, which denied defendant's motion to controvert a search warrant. Judgment and order reversed, on the law, and motion granted; the evidence seized under the warrant is suppressed, and case remanded to Criminal Term for further proceedings not inconsistent herewith. In our opinion, the "no-knock" endorsement on the search warrant was made without there having been compliance with the explicit provisions of CPL 690.35 and 690.40. Crim. Proc. The request for that endorsement was not contained in the supporting affidavit. Further, that affidavit did not comply with those statutes with respect to the need to set forth the basis for such an endorsement (cf. People v De Lago, 16 N.Y.2d 289, cert den 383 U.S. 963, interpreting section 799 of the Code of Criminal Procedure). Latham, Acting P.J., Cohalan, Margett, Brennan and Munder, JJ., concur.