People v. Weiss (35 A.D.2d 1027, 1970)

Order affirmed. Staley, Jr., Greenblott and Sweeney, JJ., concur; Herlihy, P. J., concurs in a separate memorandum, in which Greenblott and Sweeney, JJ., concur; Cooke, J., concurs in a separate memorandum.

Herlihy, P. J. (concurring).

I agree with the conclusion of the majority that the affidavit submitted in evidence in support of the search warrant is entirely insufficient to support the validity of the issuance of the said warrant. It should be noted that the question at issue in regard to the issuance of a search warrant is not necessarily limited to the affidavit and/or affidavits presented to the issuing Magistrate, but includes everything which transpired before the Magistrate. However, in the present ease the Magistrate was not examined as a part of the hearing held and the witnesses were not asked in regard to what transpired before the issuing ■ Magistrate other than to establish the fact that the affidavit was submitted. The failure of the People to adduce any evidence as to what might have taken place before the issuing Magistrate requires the conclusion that the sole basis for the issuance of the search warrant was a defective affidavit (cf. People v. Kaifetz, 35 A D 2d 1025).

Cooke, J. (concurring).

I concur in the result and on the ground that there was insufficient submitted concerning informant’s reliability.