Johansen v. Barry

• Decision Date: 16 November 1964
• Citation: 253 N.Y.S.2d 830,44 Misc.2d 446
• Parties: Application of Odd JOHANSEN, Petitioner, for an order pursuant to Article 78 of the Civil Practice Law and Rules in the nature of mandamus directed to John L. BARRY, as Police Commissioner of Suffolk County, Respondent.
• Court: New York Supreme Court

Page 830

253 N.Y.S.2d 830

44 Misc.2d 446

Application of Odd JOHANSEN, Petitioner, for an order pursuant to Article 78 of the Civil Practice Law and Rules in the nature of mandamus directed to John L. BARRY, as Police Commissioner of Suffolk County, Respondent.

Supreme Court, Suffolk County, Special Term, Part I.

Nov. 16, 1964.

Cahn & Cahn, Huntington, for petitioner.

George W. Percy, Jr., Suffolk County Atty., Riverhead, for respondent.

D. ORMONDE RITCHIE, Justice.

The petitioner in this proceeding brought pursuant to Article 78, CPLR seeks an order directing the respondent police commissioner of the County of Suffolk to return to petitioner records of fingerprints and photographs of the petitioner taken by members of the Suffolk County Police Department.

There is no factual dispute. Respondent's position in the proceeding is that a question of law only is presented.

Petitioner was arrested on a charge of violation of section 1192, subdivision 2 of the Vehicle and Traffic Law, operating a motor vehicle while in an intoxicated condition, a misdemeanor. Following his arrest he was fingerprinted and photographed. Thereafter and on June 19, 1964, in the Court of Special Sessions of the Town of Islip, defendant pleaded guilty to a violation of section 1192, subdivision 1, of the Vehicle and Traffic Law, operating a motor vehicle while his ability to operate such motor vehicle was impaired by the consumption of alcohol, a traffic infraction.

Section 552-a of the Code of Criminal Procedure specifies fingerprinting as a prerequisite to admission of bail of a defendant charged with specific crimes, misdemeanors and offenses. Violation of section 1192, subdivision 1 or 2 are not included in the misdemeanors or offenses specified in section 552-a of the code. The authority for fingerprinting petitioner is found in the provisions of section 940 of the Code of Criminal Procedure which in pertinent part imposes upon police officers the power and duty of taking fingerprint impressions and photographs of persons 'arrested and charged with a felony or with any crime which would be a felony if such person had been previously convicted of a crime * * *.' for the purpose of ascertaining the identity of persons charged with crime. Section 1192, subdivision 2 of the Vehicle and Traffic Law provides in part 'Whoever operates a motor vehicle or motorcycle while in an intoxicated condition after having been convicted of operating a motor vehicle or motorcycle while in an intoxicated condition shall be guilty of a felony * * *.' Reading this latter section in conjunction with section 940 of the Code of Criminal Procedure leads to the conclusion and the court finds that respondent in fingerprinting and photographing petitione...