People ex rel. Guido v. Calkins

• Decision Date: 25 September 1958
• Citation: 178 N.Y.S.2d 385,13 Misc.2d 791
• Court: New York County Court
• Parties: The PEOPLE of The State of New York, On The Relation of Frank GUIDO, v. Harold CALKINS, As Sheriff of The County of Schenectady.

Page 385

178 N.Y.S.2d 385

13 Misc.2d 791

The PEOPLE of The State of New York, On The Relation of Frank GUIDO, v. Harold CALKINS, As Sheriff of The County of Schenectady.

Schenectady County Court.

Sept. 25, 1958.

Morris Marshall Cohn, Dist. Atty., County of Schenectady, Schenectady, for the People, Stanley G. Grabicki, Asst. Dist. Atty., Schenectady, of counsel.

Ungerman & Greenberg, Albany, Attys., for relator, Frank Guido, Benjamin Ungerman, Albany, of counsel.

ARCHIBALD C. WEMPLE, Judge.

On the adjourned date, the Court received the Sheriff's return and an amended record of conviction showing that the above-named defendant had been tried before Hon. Louis J. Rinaldi, Police Court Justice of the City of Schenectady, on the charge of being a common gambler and violation of Section 970 of the Penal Law of the State of New York and, having been convicted after trial, was fined $500 and given six months in the Schenectady County Jail.

The amended record of conviction dated August 1, 1958 bore a statement that it amended the original commitment dated July 24, 1958, filed with the Sheriff as stated above. It was signed by the Deputy Clerk of the Police Court of the City of Schenectady.

It appears that the above-named defendant was arrested on or about the 22d day of April, 1958 and arraigned in the Schenectady Police Court on April 29, 1958 on a charge of being a common gambler in violation of Section 970 of the Penal Law.

The information upon which the arrest was made was dated April 22, 1958 and signed by one Raymond Wemple (remote relation, if any, to the undersigned Judge). This information, in so many words, accused the defendant of wrongfully, unjustly, unlawfully and knowingly committing the crime of common gambling on April 22, 1958 in the City and County of Schenectady 'in that he did on the aforesaid date at about 3:45 p. m. at the premises known as 813 Albany Street in the City of Schenectady, New York, aid and abet in the operation of a gambling establishment known as the 'Albany Street Card Shop' located at the aforesaid address.'

In the habeas corpus proceeding, this Court directs its attention to the information referred to in order to inquire whether or not the Police Court of the City of Schenectady acquired jurisdiction over the defendant in the first instance. If the Court did obtain jurisdiction by this information, then a release by way of habeas corpus must be denied. On the contrary, if the Court did not so obtain jurisdiction, then subsequent proceedings are nullities and habeas corpus will lie to release the defendant from his confinement herein.

Section 145 of the Code of Criminal Procedure defines an information as follows:

'The information is the allegation made to a magistrate, that a person has been guilty of some designated crime.'

Section 148 provides that when an information is made, the magistrate must examine under oath the informant and any witnesses he may produce, and take their depositions in writing and cause them to be subscribed. In turn, Section 149 provides that the deposition must set forth the facts stated by the prosecutor and his witnesses tending to establish the commission of the crime and the guilt of the defendant. In the light of these cited sections of law, did the information signed by Raymond Wemple, dated April 22, 1958, conform to the requirements of the Code? First, it should be noted that the deposition was in writing and sworn to before the Police Court Clerk. Next, the inquiry should be addressed to the question of whether or not the information...