People ex rel. Moochler v. D'Agostino

CourtNew York Court of Special Sessions
Citation276 N.Y.S.2d 183,52 Misc.2d 448
Decision Date02 December 1966
PartiesThe PEOPLE of the State of New York ex rel. F. A. MOOCHLER, Plaintiffs, v. Peter K. D'AGOSTINO, Jr., Defendant.

Page 183

276 N.Y.S.2d 183
52 Misc.2d 448
The PEOPLE of the State of New York ex rel. F. A. MOOCHLER, Plaintiffs,
v.
Peter K. D'AGOSTINO, Jr., Defendant.
Court of Special Sessions, Town of Elbridge, Onondaga County.
Dec. 2, 1966.

Page 184

[52 Misc.2d 449] George R. Iocolano, Auburn (John C. Rossi, Auburn, of counsel) for defendant.

Francis Moran, Dist. Atty. (Leo Hayes, Syracuse, of counsel), for plaintiff.

ROGER SCOTT, Police Justice.

Defendant moves to dismiss the uniform traffic complaint number 1558368 which accuses him of speeding on October 10, 1966 in violation of section 1180(b), par. 3 of the Vehicle and Traffic Law of the State of New York. The first basis of this motion is that the Court has no jurisdiction over the defendant, since the Court was not in session on the return date of the ticket. It is admitted that the complaint against the defendant was not filed with the Court until October 14, 1966, the return date of the ticket issued, and that the Court was not in session, this Judge having left for Washington, D.C. on business the prior day, and not having had notice of the return date of the ticket. This basis is well founded, and is a proper subject for a motion to dismiss. Matter of Bennett v. Mannix, 30 Misc.2d 613, 219 N.Y.S.2d 566; Matter of Abbott v. Rose, 40 Misc.2d 64, 242 N.Y.S.2d 773.

A Court of Special Sessions comes into existence for each particular case, and if it is not in session on the return date of the ticket, it has no jurisdiction and cannot regain jurisdiction unless a new ticket is issued and complaint filed. People v. Radak, Sup., 52 Misc.2d 300, 275 N.Y.S.2d 937.

A second, and more interesting basis for the motion to dismiss is the argument that the complaint and ticket were issued by a trooper operating a pick-up vehicle, while the actual speed of the defendant was registered by a different trooper operating the radar unit, and that there

Page 185

are not affidavits attached to the complaint which is obviously based on information and belief. The Court has held in People ex rel. Williams v. Crouch, 51 Misc.2d 898, 274 N.Y.S.2d 642, that a complaint issued by the pick-up man of a radar team who obtains [52 Misc.2d 450] his information from the radar operator as to the defendant's speed, without attached depositions or affidavits is jurisdictionally defective. It is argued, however, that the Court of Appeals in People v. Weeks, 13 N.Y.2d 944, 244 N.Y.S.2d 316, 194 N.E.2d 132, has decided that...

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2 practice notes
  • People v. Boback
    • United States
    • United States Court of Appeals (New York)
    • November 21, 1968
    ...courts have read Weeks as approving the use of a verified bill of particulars to cure a defective information (People v. D'Agostino, 52 Misc.2d 448, 276 N.Y.S.2d 183; People v. Groos, 53 Misc.2d 185, 278 N.Y.S.2d 468) or where an offense[243 N.E.2d 138] --as contrasted with a misdemeanor--i......
  • 622 West 113th St. Corp. v. Chemical Bank New York Trust Co.
    • United States
    • New York City Court
    • December 27, 1966
    ...N.Y.Civ.Prac. Paragraph 4401.16. If a third-party defendant on its case produces evidence sufficient to defeat the plaintiff's complaint,[52 Misc.2d 448] the court must make its judgment on the basis of All the evidence before it, and dismiss the complaint, even though it redounds to the be......
2 cases
  • People v. Boback
    • United States
    • United States Court of Appeals (New York)
    • November 21, 1968
    ...courts have read Weeks as approving the use of a verified bill of particulars to cure a defective information (People v. D'Agostino, 52 Misc.2d 448, 276 N.Y.S.2d 183; People v. Groos, 53 Misc.2d 185, 278 N.Y.S.2d 468) or where an offense[243 N.E.2d 138] --as contrasted with a misdemeanor--i......
  • 622 West 113th St. Corp. v. Chemical Bank New York Trust Co.
    • United States
    • New York City Court
    • December 27, 1966
    ...N.Y.Civ.Prac. Paragraph 4401.16. If a third-party defendant on its case produces evidence sufficient to defeat the plaintiff's complaint,[52 Misc.2d 448] the court must make its judgment on the basis of All the evidence before it, and dismiss the complaint, even though it redounds to the be......

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