
    The People of the State of New York, Respondent, v. Joseph Cerrato, Appellant.
    Argued November 26, 1968;
    decided February 19, 1969.
    
      
      John R. Vaughan and Anthony F. Marra for appellant.
    I. Appellant’s statements were procured in violation of his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and in violation of the laws of the State of New York. The officers failed to follow procedural safeguards mandated in Miranda v. Arizona. (People v. Torres, 21 N Y 2d 49; Escobedo v. Illinois, 378 U. S. 478; Gideon v. Wainwright, 372 U. S. 335; Miranda v. Arizona, 384 U. S. 436; Malloy v. Hogan, 378 U. S. 1; Brown v. Mississippi, 297 U. S, 278; Chambers v. Florida, 309 U. S. 227; Hoff a v. United States, 385 U. S. 293; People v. Shivers, 21 N Y 2d 118; Haynes v. Washington, 373 U. S. 503.) II. Appellant’s admission of ownership was involuntary. (Haynes v. Washington, 373 U. S. 503; Malloy v. Hogan, 378 U. S. 1; Shotwell Mfg. Co. v. United States, 371 U. S. 341; Lynumn v. Illinois, 372 U.S. 528; Crawford v. United States, 219 F. 2d 207, 220 F. 2d 352; People v. Augello, 48 Misc 2d 550.) III. The Trial Judge failed to instruct the jury on the voluntariness of the statements and failed to make an independent finding of voluntariness. (People v. Huntley, 15 N Y 2d 72; Jackson v. Denno, 378 U. S. 368; People v. McLucas, 15 N Y 2d 167; People v. Arthur, 22 N Y 2d 325.) IV. The affidavit for the warrant was perjurious and legally insufficient, and the People’s failure to disclose the informant’s identity, under the circumstances, deprived appellant of a fair hearing. (People v. Alfinito, 16 N Y 2d 181; United States ex rel. Rogers v. Warden, 381 F. 2d 209; Aguilar v. Texas, 378 U. S. 108; United States ex rel. Molloy v. Follette, 391 F. 2d 231; Giordenello v. United States, 357 U. S. 480; People v. Malinsky, 15 N Y 2d 86; People v. De Vivo, 23 A D 2d 753; People v. White, 16 N Y 2d 270 ; People v. Rogers, 15 N Y 2d 422; People v. Schnitzler, 18 N Y 2d 457.) V. Statements of the Trial Judge and the District Attorney deprived appellant of a fair trial. (People v. Ohanian, 245 N. Y. 227.)
    
      
      Burton B. Roberts, District Attorney (Arnold Kideckel of counsel), for respondent.
    I. Defendant’s guilt was established beyond a reasonable doubt. (People v. White, 2 N Y 2d 220; People v. Atlas, 183 App. Div. 595, 230 N. Y. 629.) II. Defendant’s statement—which was made in his own apartment in the presence of his family—was not procured during “ custodial interrogation ’ ’ as to mandate the Miranda warnings. (Miranda v. Arizona, 384 U. S. 436; People v. Donovan, 13 N Y 2d 148; People v. Meyer, 11 N Y 2d 162 ; People v. Waterman, 9 NY 2d 561; People v. Di Biasi, 7 N Y 2d 544; Escobedo v. Illinois, 378 U. S. 478; People v. Rodney P. [Anonymous], 21 N Y 2d 1; People v. Torres, 21 N Y 2d 49; People v. Allen, 28 A D 2d 724; Allen v. United States, 390 F. 2d 476.) III. Defendant’s admission of ownership was voluntary. (People v. Leonti, 18 N Y 2d 384.) IV. The charge—which not excepted to or request taken—was free from prejudicial error. (People v. Simons, 22 N Y 2d 533; People v. Rossi, 11 N Y 2d 379; People v. Feld, 305 N. Y. 322; People v. Lee, 300 N. Y. 422; People v. Arthur, 22 N Y 2d 325.) V. The search warrant was predicated upon information supplied by a reliable informer and the affiant’s independent observations, and thus was sufficient to establish probable cause. (People v. Montague, 19 N Y 2d 121; Aguilar v. Texas, 378 U. S. 108; Giordenello v. United States, 357 U. S. 480; United States v. Ventresca, 380 U. S. 102; Jones v. United States, 362 U. S. 257; People v. Rogers, 15 N Y 2d 422; United States ex rel. Rogers v. Warden, 381 F. 2d 209; People v. Metze. 28 A D 2d 934, 21 N Y 2d 806.) VT. Defendant was not deprived of a fair trial by either the Judge or the prosecutor. (People v. Wolf, 183 N. Y. 464; People v. Conklin, 175 N. Y. 333; People v. Yazum, 13 N Y 2d 302; People v. Leyra, 1 N Y 2d 199; People v. Cohen, 5 N Y 2d 282; People v. Owens, 22 N Y 2d 93; People v. Gowasky, 244 N. Y. 451.)
   Jasen, J.

Three New York City Narcotics Bureau detectives and a Federal narcotics agent, after exhibiting a search warrant to defendant, entered his apartment. A search of the apartment was conducted in the presence of defendant, his wife, and his brother-in-law, Anatola. Three glassine envelopes containing heroin and a manila envelope containing cocaine were discovered taped to the bottom of a portable clothes closet in a bedroom. When asked by a detective, ‘ ‘ Does your wife know anything about this ? ’ ’, defendant admitted ownership and described the contents of the envelopes.

Defendant’s motion to suppress the narcotics found in his apartment was denied after a hearing. He was convicted after trial by jury of possession of narcotics as a misdemeanor (Public Health Law, § 3305) and sentenced to an indefinite term in the New York Penitentiary. The Appellate Division unanimously affirmed.

■ Defendant challenges on this appeal the sufficiency of the search warrant used to search his apartment, the refusal of the People to disclose the identity of an informer who supplied information upon which the search warrant was in part based, and the admissibility of his admission of ownership of the narcotics.

The search warrant in question was issued upon the affidavit of Detective Hurley of the New York City Police Department. Defendant contends that this affidavit is insufficient on its face to support issuance of the warrant.

In our judgment the allegations in the affidavit were sufficient to establish probable cause for the issuance of the warrant. The affidavit recounts that a reliable informer told affiant that he (the informant) had purchased heroin from defendant of 1085 Anderson Avenue, Apartment #3D Bronx, New York ” on several occasions, and that a large quantity of heroin would be delivered to defendant’s apartment on November 4— the day the affidavit was executed and the search warrant issued. It further relates that the informer is reliable and previously supplied information leading to the arrest and conviction of two named individuals for narcotics violations. Finally, the affidavit states that defendant was known to the police as a drug seller and that1 persons known to this officer as drug sellers were observed entering and leaving said premises ” on November 2, 1965 between 8:00 p.m. and 9:30 p.m. and on November 3,1965 between 9:00 p.m. and 11:00 p.m. We note that the words, “ said premises ”, as used in this affidavit, clearly refer to defendant’s apartment which is specifically described in the first paragraph of the affidavit and not to the ¡entire apartment building of which the apartment is a palrt. (People v. Metze, 21 N Y 2d 806.)

The hearing Judge determined that the search warrant was properly obtained upon reliable information and was regular on its face. The Judge accordingly refused to suppress the contraband discovered during the course of the search.

In order to procure a search warrant based upon information supplied to the affiant by an undisclosed informer, rather than upon the affiant’s personal observations, the issuing Magistrate must be informed of “ some of the underlying circumstances from which the informant concluded that narcotics were where he claimed they were ” (Aguilar v. Texas, 378 U. S. 108, 114; see, also, People v. Montague, 19 N Y 2d 121, 122, cert. den. 389 U. S. 862; People v. Rogers, 15 N Y 2d 422) and that the informer is credible or his information is reliable. (People v. Montague, supra, pp. 122-123.)

The informant’s reliability was established in the instant case by the fact that he was known to the affiant and had previously furnished information which led to the conviction of two named individuals for narcotics violations. The affiant’s independent observations of defendant’s apartment not only verified the reliability of the informant’s information, but also provided additional grounds for issuance-of the warrant. (Spinelli v. United States, 393 U. S. 410.) Moreover, the affidavit also advised the Magistrate of the underlying circumstances from which the informer concluded that narcotics were being sold in defendant’s apartment—that he had purchased narcotics from defendant. Further, the Magistrate questioned Detective Hurley concerning the source and reliability of the matters contained in his affidavit before signing the search warrant. The independent observations of the affiant when taken together with the information which he averred he received from a reliable informant constituted a ‘ ‘ substantial basis ” for the Magistrate to conclude that narcotics were probably located in defendant’s apartment. (Spinelli v. United, States, supra; People v. Montague, supra, p. 125; People v. Rogers, supra; People v. Metze, supra; Jones v. United States, 362 U. S. 257, 271.) The search warrant was, therefore, issued upon the requisite reasonable or probable cause.

The conclusion that the search warrant was issued upon probable cause, however, is not dispositive of defendant’s further contention that he was denied a fair trial by the refusal of the People to disclose the identity of the confidential informer at the suppression hearing.

The need to protect the government’s privilege of nondisclosure of the identity of informants to encourage citizens to communicate their knowledge of crime to law enforcement officials is self-evident and has recently been reaffirmed by the Supreme Court. (McCray v. Illinois, 386 U. S. 300; Lewis v. United States, 385 U. S. 206, 210; Hoff a v. United States, 385 U. S. 293; cf. People v. Malinsky, 15 N Y 2d 86, 92; cf. United States v. Tucker, 380 F. 2d 206, 213 [2d Cir., 1967]; cf. 8 Wigmore, Evidence [McNaughton Rev., 1961], § 2374 cf. Gutterman, The Informer Privilege, 58 J. Crim. L., C. & P. S. 32 [1967].) As recently observed by a Federal Court of Appeals, “ [t]he fear that harm may result from disclosure seems all the more real when it is recognized that the narcotics traffic is usually carried on by large organized rings which are ruthless in the protection of their interests and who deal mercilessly with those who disclose their activity.” (United States v. Tucker, supra, p. 213.) Recently the President’s Commission on Law Enforcement and Administration of Justice expressly acknowledged the necessity for informants in narcotics investigations because detection through other means proves so difficult — there are seldom aggrieved victims who will render information voluntarily (The Challenge of Crime in a Free Society, A Report by the President’s Commission on Law Enforcement and Administration of Justice, p. 218 [1967]; see, e.g., 1956 Report of Subcommittee on Narcotics of Committee of Ways and Means of House of Representatives, 1956 U. S. Code & Admin. News, Yol. 2, pp. 3274, 3302; Model Penal Code [Tent. Draft No. 9, 1959], § 2.10. comment 2, p. 16).

However, the public interest in effective law enforcement must be balanced against defendant’s interest in disclosure so that he may explore the justification foir the search warrant. This court struck the balance between these competing interests in People v. Malinsky (15 N Y 2d 86, supra). The government’s privilege of nondisclosure of the identity of informants is limited by. the ‘ ‘ fundamental requirements of fairness ’ ’ and must give way where ‘ its assertion would seriously prejudice the defense ‘ by making a fair hearing impossible ’ ’ (People v. Malinsky, supra, p. 92.)

The instant case, however, is not one of those “ rare ” cases contemplated by our decision iii Malinsky “ where disclosure is demanded by the requirements of a fair trial ”, (People v. Malinsky, supra, p. 94.) Here, as in People v. Coffey (12 N Y 2d 443, cert. den. 376 U. S. 916), cited with approval in Malinsky, ‘ ‘ a showing of probable cause did not depend solely upon the officer’s testimony of the communications from the avowed informer.” (People v. Malinsky, supra, p. 94.) The informer’s information that defendant was selling narcotics was independently verified and corroborated by the observations of the detectives and Federal Agent Wysor during their stake-out of defendant’s apartment and building. The informant’s communication, therefore, was not essential to the establishment of probable cause for issuance of the search warrant in this case.

We note that the statements contained in the affidavit in support of the search warrant, summarized above, were amplified by the testimony of Detective Hurley at the suppression hearing and trial. Detective Hurley testified that on November 2, he and Detective Meehan observed defendant’s brother-in-law, Anatola, a known drug user and seller, enter defendant’s apartment and remain for 10 minutes. The next day, accompanied by Federal Narcotics Agent Wysoir, Detective Hurley was standing across the street from the apartment building in which defendant lived when he observed one Bevins, known as a drug seller, whistle up to defendant who was standing at a window. Defendant motioned with his hand and Bevins entered the building and remained for 10 to 15 minutes. We also note that defendant was allowed to cross-examine Detective Hurley concerning the time and place of his meetings with the informer, how the informant was contacted, and the information disclosed at their meetings. Moreover, unlike Malinsky, the reliability of the informant was clearly established in the instant case. Under these circumstances, denial of disclosure of the informant’s identity did not deprive defendant of a fair trial. (People v. White, 16 N Y 2d 270, cert. den. 386 U. S. 1008; People v. Coffey, supra; cf. People v. Tucker, supra.)

Defendant also argues that his admission of ownership of the narcotics discovered in the bedroom of his apartment was obtained during custodial interrogation ” and that the monitions established by Miranda v. Arizona (384 U. S. 436) were, therefore, required. It is not disputed that the warnings were not given. The suppression hearing in this case was conducted subsequent to the Miranda decision and its rules are, therefore, applicable (Johnson v. New Jersey, 384 U. S. 719, 732-733; People v. McQueen, 18 N Y 2d 337.) The hearing Judge found that defendant was not subjected to “ custodial interrogation ” and accordingly refused to suppress his admissions.

The fourfold Miranda warnings are applicable only in instances of custodial interrogation ” which the Supreme Court has defined as “ questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda v. Arizona, supra, p. 444.) In a footnote appended to this sentence the court stated “ [t]his is what we meant in Escobedo [378 U. S. 478] when we spoke of an investigation which focused on an accused.” In People v. Rodney P. (Anonymous) (21 NY 2d 1,11), this court applied Miranda as requiring that the warnings be given “ when the questioning takes place under circumstances which are likely to affect substantially the individual’s ‘ will to resist and compel him to speak when he would not otherwise do so freely. ’ ”

Although the police officers were present in defendant’s apartment pursuant to a lawfully issued search warrant, they did not arrest him or subject him to any restraint or period of questioning up to the time his admission was made. The credible testimony establishes that defendant was not under any restraint or restriction during the course of the search but, rather, moved freely about the apartment observing the officers’ activities. Defendant’s wife, mother-in-law, and brother-in-law were also present in the apartment while the search was conducted. The record, therefore, supports the findings of the suppressionhearing Judge that defendant was not in a police-dominated atmosphere or inherently coercive setting which would affect substantially his will to resist or compel him to speak but, rather, ‘ ‘ was in the familiar atmosphere of his home under circumstances indicating his freedom from any compelling influences.” (People v. Allen, 28 A D 2d 724; Allen v. United States, 390 F. 2d 476, 478-479 [D. C. Cir., 1968]; Evans v. United States, 377 F. 2d 535 [5th Cir,, 1967]; cf. People v. Rodney P. [Anonymous], supra; cf. People v. Phinney, 22 N Y 2d 288; cf. United States v. Davis, 259 F. Supp. 496, 497-498 [D. C., Mass., 1966]; cf. Commonwealth v. O’Toole, 351 Mass. 627 [1967].)

■ Further, defendant’s admission was made immediately upon discovery of the narcotics in response to an informal inquiry which recognized the possibility of his noninvolvement despite the location of the drugs in his apartment and sought to ascertain which of .the several other persons having access to the apartment was involved. The most likely possibility at the time this question was asked was that the drugs belonged to defendant’s brother-in-law, Anatola, who had been apprehended while attempting to leave the apartment with a bag of narcotics and was in custody in another room. In fact, at both the suppression hearing and trial Anatola testified that he lived in defendant’s apartment and that the narcotics found beneath the ‘ portable clothes closet ’ ’ belonged to him. Clearly, therefore, the admission was not the product of a process of interrogation designed to elicit incriminating statements from defendant. (People v. R. N., 23 N Y 2d 963; cf. People v. Wright, 66 Cal. Rptr. 95 [1968].) Undeir these circumstances the Miranda warnings were not required. (People v. Allen, supra; Allen v. United States, supra; Evans v. United States, supra; United States v. Davis, supra; People v. R. N., supra; cf. People v. Rodney P. [Anonymous], supra; cf. People v. Phinney, supra; cf. People v. Wright,supra; cf. Commonwealth v. O’Toole, supra; cf. United States v. Thomas, 396 F. 2d 310, 314 [2d Cir., 1968].)

Defendant finally contends that the trial court erroneously failed to instruct the jury on the voluntariness of his admissions. However, this alleged omission is nonreviewable since defendant did not request the court to charge on this point and did not except to the charge as given. (Code Crim. Pro., § 420-a; People v. Simons, 22 N Y 2d 533; People v. Feld, 305 N. Y. 322.) We note that, as discussed above, the admissions were properly determined to be voluntary at the pretrial suppression hearing, and that .this alleged error could have easily been corrected at trial had defendant made appropriate objection.

Defendant’s other arguments have been considered and are without merit.

Accordingly, the judgment of conviction should be affirmed.

Breitel, J. (dissenting).

Police officers, holding a warrant to search the apartment residence of defendant in Bronx County, entered the apartment and made a search pursuant to the warrant while, among others, defendant, his wife, and defendant’s brother-in-law (Anatola) weire present. The only significant issue upon which there is disagreement in the court is whether the interrogation of defendant was proper under the circumstances without the officers first having given defendant the fourfold warning mandated by the Supreme Court in Miranda v. Arizona (384 IT. S. 436). The suppression hearing was conducted subsequent to the decision in the Miranda case and its . rules are, therefore, applicable (Johnson v. New Jersey, 384 U. S. 719, 732-733).

Just before the police entered the apartment the brother-in-law, Anatola, was leaving. He was seen to drop a brown paper bag. Upon opening the bag, .the police officer who retrieved it found it to contain what he had reason to believe were narcotics. Anatola was arrested. A boy, defendant's son, then emerged from the apartment. He re-entered the apartment and was later permitted to go his way to school in response to the importuning of defendant’s wife.

After these preliminary events, the officers conducted a thorough search of the apartment. In the bedroom tacked to the underside of a raised free-standing “ closet ” the police found a piece of cloth containing three glassine envelopes, a clear plastic, and a manila envelope, each enclosing a white powder. Just before the removal of the cloth the officer asked defendant “ What’s under there?” Defendant said it’s nothing, he didn’t know anything under there.” The officer further testified: Well, when I took them from under — when I first asked the defendant Mir. Cerrato ‘ What’s under there? ’ And he said ‘ I don’t know. Nothing.’ And I took them from under and looked at .them, and he was standing with me. I said, ‘ Does your wife know anything about this? ’ He said, 1 No, it’s all mine.’ And that [sic] he proceeded to tell me what was in each bag.” The officer later detailed that defendant told him the brown envelope contained cocaine, one was just a white powder and the other bags contained heroin.” Defendant was then arrested.

On the suppression hearing the Trial Justice, in substantial effect, found the events to have occurred as above described, crediting the police officer’s testimony. The facts thus found are conclusive on this court (cf. People v. Leonti, 18 N Y 2d 384, 389-390). But, accepting the facts as thus found, the admission so obtained should have been suppressed and excluded from the trial upon which defendant was convicted of possession of narcotics as a misdemeanor and sentenced to the New York City Penitentiary.

The situation which arose in this case was expressly distinguished and not passed upon in People v. Torres (21 N Y 2d 49). In the Torres case, during a search of defendant’s apartment under a search warrant, without any interrogation whatever, defendant volunteered where the contraband was to be found, and it was '(supra, p. 51). In this case, defendant was subjected to a series of questions, however short, before all the incriminating admissions were obtained. He was asked what was under the “ closet.” "When the contraband was found, he was asked in effect whose it was, with the ingenious but disingenuous suggestion that it was the property of defendant’s wife. In response to the court’s leading question, the officer testified that the defendant volunteered, without further questioning, a description of the contents of the several containers.

Moreover, the questioning was preceded not only by the stopping -of the brother-in-law, but by his arrest. The son was permitted to leave after the mother’s request. It was said in the Torres case (supra, p. 54), that the mere fact of a search warrant and its execution, even if accepted as creating a custodial atmosphere, does not necessarily suggest a “ compelling influence ” to speak; the allowance of the testimonial evidence was bottomed-on the voluntary spontaneous statements by the defendant. In this case, the police had already made it clear that no one was to leave the apartment without their permission. Narcotics had already been found on one occupant, the warrant was directed to defendant, and it takes a super-attenuated analysis to conclude that defendant had a reasonable basis for believing that he was a free man, when he was interrogated.

Under such circumstances, the Miranda rules apply (see Miranda v. Arizona, supra, pp. 467, 472-473, 477). Nor are the rules avoided by a waiver obtained by .threat, trick, or cajolery (id., p. 476). Hence, the designedly oblique question suggesting inculpation of the wife does not sustain admissibility. Indeed, it may be the fact that most cogently negates the voluntariness of the admissions.

Accordingly, I dissent and vote to reverse the judgment of conviction, and remand the action for a new trial.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan and Keating concur with Judge Jasen ; Judge Breitel dissents and votes to reverse in a separate opinion.

Judgment affirmed. 
      
      . It is not clear from the record whether the .detectives were aware at this time that Anatola lived with defendant in his apartment.
     
      
      . Defendant concedes that the statement he made when. shown the search warrant, that there were no drugs in his apartment, is admissible as a spontaneous and voluntary statement (People v. Torres, 21 N Y 2d 49, 53-54). Concerning the circumstances .existing at the time defendant made his admission, the hearing Judge made .the following findings of fact which we find to be supported iby the record.
      “While Detective Hurley searched the bedroom- the .defendant stood nearby watching. In the course of such examination Hurley noticed a white cloth hanging from the bottom of a portable clothes closet therein and he asked the defendant, ‘What is under there?’ The defendant responded, ‘ I don’t know. Nothing.’
      “ The detective thereupon removed such cloth finding therein five envelopes, four of which contained narcotics and one containing a non-narcotic white powder. After examining these packets Hurley turned to the defendant, who was standing nearby, and asked, ‘Does your wife know anything about this?’ Defendant answered, ‘No, it’s all mine.’ He then proceeded to tell the officer what was in each packet.
      “ Immediately thereafter the defendant was placed under arrest. Following such arrest he was permitted to change his clothes and to engage in conversation with his wife without any intereference [sic]. He instructed his wife to call his attorney and the officer permitted him to remain until, after .three or four calls, his wife finally reached his attorney’s secretary and imparted to her the information as to where -the defendant was being taken.”
     