The First Department, in a full-fledged opinion by Justice Tom, over a two-justice dissent. determined that the description in the search warrant of the property to be searched was sufficient, notwithstanding that public records showed three residential units at that street address:
The dissent relies on allegations in defense counsel’s affirmation to argue for a more differentiated internal living structure. However, since an attorney’s affirmation is not evidence, the endeavor is unavailing. The dissent also relies on the affidavit submitted by defendant’s mother to counter the position of the People that the house was a private family residence. In view of the obvious likelihood of a compelling personal interest motivating the mother, we also decline to accept this as reliable evidence in the effort to controvert the warrant and the additional material in the record.
The only indication that the house legally could have been occupied as separate units was in the extrinsic materials supplied by defendant in moving to controvert the warrant, consisting of public records showing that the house contained three units. However, the fact that city records reflected that the house could be occupied as three units for tax or zoning purposes does not require a conclusion that it was. There likely are numerous legal two- or three-family residential houses that remain occupied by single families. The classifications of these houses relate to tax or land use matters that have no necessary bearing on the facial validity of a warrant. People v Duval, 2019 NY Slip Op 08542, First Dept 11-26-19