People ex rel. Moochler v. Simmons

CourtNew York Court of Special Sessions
Citation52 Misc.2d 235,277 N.Y.S.2d 356
Decision Date11 November 1966
PartiesThe PEOPLE of the State of New York ex rel. F. A. MOOCHLER, Plaintiff, v. Thomas J. SIMMONS, Defendant.

Page 356

277 N.Y.S.2d 356
52 Misc.2d 235
The PEOPLE of the State of New York ex rel. F. A. MOOCHLER, Plaintiff,
v.
Thomas J. SIMMONS, Defendant.
Court of Special Sessions, Town of Elbridge, Onondaga County.
Nov. 11, 1966.

Page 357

[52 Misc.2d 236] James J. Maio, Syracuse, for defendant.

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

ROGER SCOTT, Police Justice.

Defendant moves to dismiss the uniform traffic complaint number 1558359 which accuses him of speeding on October 10, 1966 in violation of section 1180(b), par. 3 of the Vehicle and Traffic Law.

The first basis of this motion is that the Court has no jurisdiction over the defendant since a proper complaint has not been filed with the Court alleging the commission of the offense by the defendant, and People ex rel. Refinburg v. Bremner, 51 Misc.2d 632, 273 N.Y.S.2d 682. The People argue that the approval of the complaint by the Commissioner of Motor Vehicles, as required by section 147--e of the Code of Criminal Procedure pursuant to section 207 of the Vehicle and Traffic Law, is not the type of rule or regulation which is required to be filed, People v. Fogerty, 18 N.Y.2d 664, 273 N.Y.S.2d 343, 219 N.E.2d 801. The defendant claims that the approval must be filed, People v. Cull, 10 N.Y.2d 123, 218 N.Y.S.2d 38, 176 N.E.2d 495.

In the Fogerty case, the Court of Appeals stated that police rules for the taking of blood tests are not the kind of rules which govern the conduct of and impose burdens on the People such as should be filed pursuant to section 8 of article 4 of the State Constitution. In the Cull case the Court of Appeals stated that an order of the State Traffic Commission

Page 358

establishing a speed limit amounted to a rule or regulation which was required to be filed. It is noted that, although the Court of Appeals in the Fogerty case did not require the filing of the rules governing the tests, that decision did not dispense with, but actually affirmed the ruling in the case of People v. McFarren, 28 Misc.2d 320, 321, 222 N.Y.S.2d 828, 830 which required that on a trial of a charge under section 1192 of the Vehicle and Traffic Law, there had to be established that there were rules and regulations in existence in the particular police department for the administration of chemical tests and it had to be further shown on the trial that such tests had been given in accordance with such rules and regulations and that they satisfied recognized...

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4 practice notes
  • People v. Fisher
    • United States
    • New York Justice Court
    • May 25, 1968
    ...18 N.Y.2d 664, 273 N.Y.S.2d 343, 219 N.E.2d 801 and the implied affirmance opinion of Police Justice Roger Scott in People v. Simmons, 52 Misc.2d 235, 277 N.Y.S.2d More importantly, however, this Court believes that, in any event, the rules or regulations referred to in Section 1194 of the ......
  • People v. Y. O. 1185
    • United States
    • New York District Court
    • June 24, 1971
    ...form prescribed by the Commissioner of Motor Vehicles. (cf. People v. Bremner, 51 Misc.2d 682, 273 N.Y.S.2d 682 and People v. Simmons, 52 Misc.2d 235, 277 N.Y.S.2d The motion to dismiss for insufficiency of the information is denied. ...
  • People v. Farley
    • United States
    • New York District Court
    • September 10, 1985
    ...traffic information), which differs from the prescribed form must be promulgated in accordance with this section People v. Simmons, 52 Misc.2d 235, 277 N.Y.S.2d 356. There is no indication that the requisite procedures were followed herein, and hence the commissioner's vague approval cannot......
  • Marshall v. State, No. 44173
    • United States
    • New York Court of Claims
    • December 6, 1966
    ...the gorge trail and removed all loose stones, tree limbs and such like debris from the trail area and had also inspected the banks and [52 Misc.2d 235] whenever loose material was discovered had knocked it down with long-handled To hold the State negligent under the circumstances here shown......
4 cases
  • People v. Fisher
    • United States
    • New York Justice Court
    • May 25, 1968
    ...18 N.Y.2d 664, 273 N.Y.S.2d 343, 219 N.E.2d 801 and the implied affirmance opinion of Police Justice Roger Scott in People v. Simmons, 52 Misc.2d 235, 277 N.Y.S.2d More importantly, however, this Court believes that, in any event, the rules or regulations referred to in Section 1194 of the ......
  • People v. Y. O. 1185
    • United States
    • New York District Court
    • June 24, 1971
    ...form prescribed by the Commissioner of Motor Vehicles. (cf. People v. Bremner, 51 Misc.2d 682, 273 N.Y.S.2d 682 and People v. Simmons, 52 Misc.2d 235, 277 N.Y.S.2d The motion to dismiss for insufficiency of the information is denied. ...
  • People v. Farley
    • United States
    • New York District Court
    • September 10, 1985
    ...traffic information), which differs from the prescribed form must be promulgated in accordance with this section People v. Simmons, 52 Misc.2d 235, 277 N.Y.S.2d 356. There is no indication that the requisite procedures were followed herein, and hence the commissioner's vague approval cannot......
  • Marshall v. State, No. 44173
    • United States
    • New York Court of Claims
    • December 6, 1966
    ...the gorge trail and removed all loose stones, tree limbs and such like debris from the trail area and had also inspected the banks and [52 Misc.2d 235] whenever loose material was discovered had knocked it down with long-handled To hold the State negligent under the circumstances here shown......

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