Johnson v. Boldman

• Decision Date: 05 July 1960
• Citation: 24 Misc.2d 592,203 N.Y.S.2d 760
• Parties: Application of James M. JOHNSON, for an order pursuant to Article 78 of the Civil Practice Act v. George BOLDMAN, as District Attorney of Tioga County, New York.
• Court: New York Supreme Court

Page 760

203 N.Y.S.2d 760

24 Misc.2d 592

Application of James M. JOHNSON, for an order pursuant to

Article 78 of the Civil Practice Act v. George BOLDMAN, as District Attorney of Tioga County, New York.

Supreme Court, Special Term, Tioga County.

July 5, 1960.

Alan J. Friedlander, Waverly, for petitioner.

George Boldman, Dist. Atty., Owego, respondent in person.

HOWARD A. ZELLER, Justice.

This Article 78 proceedings brought on by the petition of James M. Johnson as Mayor of the Village of Waverly, Tioga County, New York, seeks to compel George Boldman as Tioga County District Attorney to prosecute those crimes, offenses and violations of village ordinances cognizable by the Police Court of the Village of Waverly. No issue is presented concerning the duty of the District Attorney to prosecute in the Police Court violations of the Penal Law or the Vehicle and Traffic Law of the State of New York. He has done so and states that he intends to continue to do so. Fixing the task of prosecuting violations of ordinances and particularly of the speed ordinance of the Village is the key issue presented.

The Mayor contends that the broad scope of the District Attorney's duties defined by Section 700(1) of the County Law requires him to direct, control and undertake the prosecution of such violations of village ordinances in his county as are in the nature of a criminal offense. The pertinent portion of the cited County Law states, 'It shall be the duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he shall have been elected or appointed * * *'. The Mayor argues that speeding and other infractions of village traffic ordinances are crimes or offenses and are cognizable by a court of the county, to wit--The Waverly Police Justice Court. It is contended that by thus being within the literal wording of the statute, the District Attorney must prosecute infractions of village traffic ordinances.

The District Attorney does not take issue with the Mayor's contention that the Waverly Police Justice Court is a 'court of the county' nor does he directly deny that a village traffic infraction is one of the 'crimes and offenses cognizable by the courts of the county'. The District Attorney does controvert the Mayor's interpretation that the word 'duty' as used in Section 700(1) is a mandate requiring him to undertake the prosecution of alleged violations of village ordinances.

It is this court's opinion, for reasons hereafter stated, that despite its common connotation of being a thing absolute and inviolable, the word 'duty' as used in Section 700(1) of the County Law and as applicable to village ordinances is surrounded by permissive and non-absolute implications, and is intended by the Legislature not so much to require action as to preserve the right to act when sound discretion dictates.

It has been a 'long-established and accepted procedure and practice of over a century * * *', which 'today has the force of law', to have the prosecution of misdemeanors and offenses in the lower courts 'conducted by local authorities, that is, by the police, state troopers, * * * town and village attorneys and corporation counsels.' People v. Wyner, 207 Misc. 673, 675, 142 N.Y.S.2d 393, 396; see also, People v. Schildhaus, 4 N.Y.2d 883, 174 N.Y.S.2d 465; Matter of Turecamo Contracting Co., Inc., 260 App.Div. 253, 21 N.Y.S.2d 270, leave to appeal denied, Turecamo v. Bennett, 259 App.Div. 1094, 22 N.Y.S.2d 123; People v. Halbreich, 18 Misc.2d 473, 186 N.Y.S.2d 689; People v. Montgomery, 7 Misc.2d 294, 166 N.Y.S.2d 455; Coleman v. Lee, 1 Misc.2d 685, 148 N.Y.S.2d 753. And '* * * it is commonplace for the magistrates to avail themselves of the services of counsel representing the complaining witnesses' to prosecute cases in the lower courts. People v. Scharer, 185 Misc. 616, 617, 58 N.Y.S.2d 87, 89.

A cursory examination of annotated statutes shows that Section 700 of the County Law has undergone several legislative reviews and revisions in the past 50 years without substantial revision of the phrase, 'It shall be the duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county * * *.' It is inconceivable that successive legislatures were so unaware of the existing practices in the lower courts that when they used the word 'duty' it was intended as a mandate to the district attorney to conduct all prosecutions for crimes and offenses. It is equally inconceivable that these successive legislatures all would ignore any real conflict between known actual practices and the true legislative intent behind the wording of the statute. As the court stated in People v. Black, 156 Misc. 516, at page 519, 282 N.Y.S. 197, at page 201: 'We do not believe that the Legislature of this state * * * intended * * * that the heavy artillery of the offices of * * * the district attorney be wheeled into action * * * every time a rabbit be snared or a frog speared after dark * * *'. The court went on to say at page 520 of 156 Misc., at page 201 of 282 N.Y.S. that 'district attorneys in rural counties, usually without assistance, cannot be called upon to prosecute * * * petty cases'.

A district attorney is a quasi-judicial officer with wide latitude in the discretionary exercise of his duty to prosecute crimes and offenses of a criminal nature provided there is an actual and reasonable exercise of discretion within the bounds of the office's jurisdiction. Coombs v. Edwards, 280 N.Y. 361, 21 N.E.2d 353; People v. Fielding, 158 N.Y. 542, 53 N.E. 497, 46 L.R.A. 641; Coleman v. Lee, 1 Misc.2d 685, 148 N.Y.S.2d 753.

Examination of the problem confronting this respondent District Attorney conclusively demonstrates that the exercise of his discretion was wise in refusing to prosecute all village traffic ordinance violations.

Waverly is situated between Elmira and Binghamton on New York Route 17, which is a heavily travelled east-west through route in the Southern Tier. The village is also the northern terminal point of U. S. Routes 220 and 309 which serve the northern Susquehanna Valley section of the State of Pennsylvania.

On a June 1 to May 31 fiscal year basis, the Waverly Police Justice Court records show for 1957-58 a total of 1,054 village ordinance violations resulting in fines and forfeitures of $18,484; for 1958-59 a total of 83 such violations with fines and forfeitures of $1,260; and for 1959-60 a total of 1,341 such violations producing fines and forfeitures of $21,525. Concededly, speeding ordinance violations made up the vast bulk of these village ordinance violations. The dearth of prosecuted violations in the 1958-59 fiscal year is attributed by the respondent, with some documentation, to national publicization of Waverly as a 'Speed Trap', allegedly resulting in a new Village Board and changed policies and practices in the enforcement of village traffic ordinances, but only for that particular fiscal period.

Not included in the above statistics but also disposed of in the Waverly Police Justice Court were 252 violations in 1957-58 of the State Penal Law and the State Vehicle and Traffic Law producing fines of $3,078; 156 such violations with fines totalling $1,429 in 1958-59; and 219 Penal Law and Vehicle and Traffic violations in 1959-60 resulting...