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This memorandum is uncorrected and subject to revision before publication
in the New York Reports.
John A. Cirando, for appellant.
Submitted by Ramona L. Rabeler, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
On appeal, defendant contends that, even if the written search warrant application in this case was sufficient under CPL 690.35, it was rendered insufficient if the issuing court took oral testimony and failed to record that testimony as required by CPL 690.40(1).
In the absence of any specific proof, the law presumes that the statutory requirements were satisfied. Under this "presumption of regularity" the law further presumes that no official or person acting under an oath of office will do anything contrary to his official duty, or omit anything which his official duty requires to be done. Substantial evidence is necessary to overcome that presumption. There is no such substantial evidence in this case.
We do not reach the argument raised by the People, that the filing of witnesses' testimonial affidavits can constitute "substantial compliance" with the recordation requirement of CPL 690.40(1) under our holding in People v Taylor (73 NY2d 683, 688-689). We have considered the remaining contentions of defendant and conclude that they are without merit.
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Order affirmed, in a memorandum. Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.
Decided July 2, 1997