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Decided on May 28, 2004
Supreme Court, Queens County

N10590 -03
Seymour Rotker, J.
An indictment has been filed against the defendant accusing him inter alia of the crimes of criminal possession of a weapon in the third degree and criminal possession of marijuana in the second degree. The charge is that on January 14, 2003, defendant knowingly an unlawfully possessed firearms and marijuana in his residence located at 155-16 134th Avenue, Queens, New York.
Defendant, claiming to be aggrieved by an unlawful search and seizure, has moved to suppress firearms, rifles, marijuana and other property seized from his apartment on January 14, 2003, by Detective George Schreiner and other police officers while executing a search warrant.
In this case, the People assert that the seizure of the property from the defendant's apartment was pursuant to a valid search warrant and otherwise seized during a lawful search of the premises.
The defendant initially moved before another Justice of the Court to controvert the search warrant authorizing entry into the premises. After argument before that Justice, the Court authorized a hearing to determine where the property was recovered from in the premises and whether the warrant was appropriately executed. Upon reargument, defendant's motion to controvert the search warrant was also granted.
The People have the burden, in the first instance, of going forward to show the legality of police conduct. Defendant, however, bears the ultimate burden of proving by a preponderance of the evidence that the physical evidence should be suppressed.
A pretrial suppression hearing was conducted before me on March 23, 24 and May 26, 2004.
Testifying at this hearing was Detective George Schreiner.
I find his testimony to be credible.

I make the following findings of fact:
Detective George Schreiner, a seventeen and a half year veteran of the New York City Police Department, was assigned to the Queens Narcotic Division of the New York City Police Department and had been assigned to that unit for approximately eight years. On January 13, 2003, Detective Schreiner obtained a search warrant for the premises of 155-16 134th Avenue, Queens, New York, listed as a single family house.
The request was to search and seize marijuana and drug paraphernalia used to package marijuana and other materials relating to the purchase of marijuana.
The New York City Police Department had received information from the Maricopa County Police Department, State of Arizona, that a Federal Express package addressed to "Lisa Williams, 155-16 134th Avenue, Jamaica, New York, 11434" had been seized and found to contain approximately fifteen pounds of marijuana. [*2]
On or about January 9, 2003, Detective Schreiner went to the premises and took a photograph which revealed the building to be a one and a half story unit with one front entrance door. There were two mailboxes on either side of the front door and two doorbells. The photograph was taken for the purpose of identifying the premises to fellow officers who would be able to identify the location when and if a search warrant was executed.
Detective Schreiner ascertained from the New York City Tax Department that "James Sellers" was the tax payer for the house. He also learned from Con Edison that "James Sellers" was the only subscriber listed for the premises. From an internet website he also learned that there was only one telephone subscriber at the premises.
Detective Schreiner had never been in the premises before and based upon his observation of the exterior of the building and other information he received, he assumed the house to be a single family residence.
Detective Schreiner and his fellow officers decided that a controlled delivery of marijuana to the premises would be made by an undercover police officer. If the package was accepted, it would be followed into the premises, and the warrant executed.
On January 14, 2003, the package was delivered by the undercover police officer at approximately 10:55A.M. The undercover then told his fellow officers that the person who accepted the package went upstairs to the left of the front door. The no knock warrant was then executed by officers breaking in the front door.
Only after entering the premises upon executing a search warrant did Detective Schreiner notice that there was a door apparently to an apartment on the lower level to the right of the front door.
Detective Schreiner and other officers went upstairs and observed the defendant, Andre Stennett, and saw in the kitchen area, the box of marijuana which had been delivered. The box was opened and the marijuana was inside. A search of the upstairs portion of the premises was conducted. United States currency was found in open view on top of a television stand. In a closed kitchen cabinet, one pound of marijuana was recovered. Numerous small Ziploc bags in open view were recovered from a couch. A .357 revolver and a semiautomatic rifle were recovered from a closed armoire in a bedroom. Two shotguns and a rifle were recovered, from a closed bag, behind a dresser, in a child's bedroom. From a small box in the armoire, numerous live rounds of ammunition were recovered. Cellular telephones were recovered, in open view, from the top of
a television stand and a lease agreement was recovered from a dresser drawer, in the bedroom.
I make the following conclusions of law:

Validity of Warrant Application for Area Specified

A defendant may challenge a search warrant on the ground that the affidavit contains perjury, People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243 (1965). If the defendant makes a "substantial preliminary showing that a false statement knowingly or intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674 (1978); see also People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656 (1972).
Here, defendant challenges the veracity of the affiant, Detective Schreiner, claiming that the affidavit contains perjury and/or a statement in reckless disregard for the truth, People v. Alfinito, supra. A hearing was held before this court to address defendant's claims. It is defendant's burden to prove by a preponderance of evidence that the facts stated by the detective were untrue or recklessly made. See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978); People v. Dymond, 130 A.D.2d 799, 514 N.Y.S.2d 826 (3d Dept. 1987).
In the instant matter, the specific claim defendant asserts is that the detective represented to the court in his warrant application that the location at issue was a one-family residence and the [*3]location is actually a two-family dwelling. It is alleged by defendant that the detective was aware of this fact or recklessly disregarded it at the time of the warrant application. Thus, the first issue before this court is whether a false statement was intentionally, knowingly or recklessly made by
Detective Schreiner in his warrant application.[FN1]
Notably, a warrant is presumed to be valid, therefore, the burden upon the People at a hearing on a motion to controvert a search warrant is minimal. See People v. Hanlon, 36 N.Y.2d 549, 369 N.Y.S.2d 677 (1975). This presumption attaches since there has already been a judicial review as to the warrant's justification. See People v. Castillo, 80 N.Y.2d 578, 585 (1992), cert. denied 507 U.S. 1033; People v. Hanlon, supra. The application for a search warrant "should not be read in hypertechnical manner [and] must be considered in the clear light of everyday experience and accorded all reasonable inferences." Hanlon, 36 N.Y.2d at 559.
In opposition to defendant's assertion that the detective was not truthful or was reckless in his statement that the premise to be searched was a one-family dwelling, the People rely upon People v. Mabrouk, 290 A.D.2d 235, 736 N.Y.S.2d 15 (1st Dept. 2002).[FN2] In Mabrouk, the court found that the search warrant affiant, Detective Rivera, properly relied upon information supplied by a registered informant and a recording industry investigator when applying for the warrant. The warrant was for the recovery of counterfeit compact discs from a "basement apartment of a multi

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