People ex rel. Panek v. Radak

CourtNew York Court of Special Sessions
Citation52 Misc.2d 300,275 N.Y.S.2d 937
Decision Date05 December 1966
PartiesThe PEOPLE of the State of New York ex rel. M. W. PANEK, Plaintiff, v. Ronald J. RADAK, Defendant.

Page 937

275 N.Y.S.2d 937
52 Misc.2d 300
The PEOPLE of the State of New York ex rel. M. W. PANEK, Plaintiff,
v.
Ronald J. RADAK, Defendant.
Court of Special Sessions of Town of Elbridge, Onondaga County.
Dec. 5, 1966.

Page 938

Ronald J. Radak, in pro. per.

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

ROGER SCOTT, Police Justice.

Defendant moves to dismiss the uniform traffic complaint number 1404739 which accuses him of speeding on October 10, 1966, in violation of section 1180(b) 3 of the Vehicle and Traffic Law of the State of New York.

The basis of the defendant's motion is upon several grounds, which will be discussed separately. The defendant was issued a uniform traffic ticket on October 10, 1966, returnable before this Court on October 21, 1966. The defendant, at the time of his appearance on October 21, 1966, resided in Canandaigua, New York. When he appeared he was surprised to discover that neither the arresting officer nor the District Attorney was present. It was therefore impossible for him to proceed to present his defense. The defendant was informed of his right to a bill of particulars pursuant to section 147--f of the Code of Criminal Procedure, and after due demanding a bill of particulars the [52 Misc.2d 301] matter was adjourned until October 28, 1966. A letter was sent to the arresting officer advising him of the defendant's demand for a bill of particulars. On October 28, 1966, the defendant re-appeared, but a bill of particulars had not been filed with the Court nor forwarded to the defendant. Again on October 28, 1966 neither the District Attorney nor the arresting officer was present. The matter was adjourned until November 11, 1966 and a second letter was sent to the arresting officer advising him of the defendant's previous demand, and the adjournment. On November 11, 1966, approximately 1 hour prior to the time set for the defendant's re-appearance, an envelope containing what purported to be bills of particulars was delivered to this Court. At the time of the defendant's re-appearance, neither the District Attorney nor the arresting officer was present, and a bill of particulars was given to the defendant. Again the defendant was informed that a trial court not be had on that night in the absence of the arresting officer and the District Attorney. Thus far, the defendant had made 3 trips from Canandiagua, to the Court. This Court is concerned with the procedure generally followed in issuing tickets for a violation of the Vehicle and Traffic Law. The arresting officer sets a date for the defendant's appearance in Justices' Court. In this county, the District Attorney has established a schedule of dates for the appearance of an Assistant District Attorney in each of the Justices' Courts. The return date established by

Page 939

the arresting officer rarely coincides with the date established for the appearance of an Assistant District Attorney in the Court, and it is virtually impossible for the defendant to have a trial on the return date of the ticket. It would seem the proper procedure would be for the arresting officer to make the return date coincide with the date when the District Attorney or one of his assistants would be present in Court, and since the arresting officer is at liberty to choose any date he desires when Court is in session, he should choose a date when he also could be present. The prosecutor is required by law and practice to be present at the arraignment on a criminal charge. Section 701 of the Code of Criminal Procedure requires that upon a plea other than a plea of guilty, if the defendant does not demand a trial by jury, the Court must proceed to try the issue. Charges of a violation of the Vehicle and Traffic Law, other than charges which are stated to be a misdemeanor, are all triable without a jury. In People v. Prosser, 309 N.Y. 353, 358, 130 N.E.2d 891, 895, 57 A.L.R.2d 295, the Court stated 'It is the state which initiates the action and it is the state which must see that the defendant is arraigned. It is likewise the state which has the duty of seeing that the [52 Misc.2d 302] defendant is speedily brought to trial.' Although section 700 of the County Law makes it the duty of the District Attorney to conduct all criminal proceedings in all Courts of the County, the arresting officer or the Justice himself may conduct the trial in the absence of the District Attorney. People v. James, 150 Misc. 390, 269 N.Y.S. 626; 1933 Opinions of the Attorney General 111, A Guide for Justices of the Peace by Alfred Morrison 367.

It is customary for the District Attorney to bring with him at the date for the trial, a stenographer. It is not required, unless the defendant demands it, that a stenographer be obtained to take the minutes of the trial. The Justice of the Peace is required, during the course of a trial before him to keep...

To continue reading

Request your trial
4 practice notes
  • People v. Boback
    • United States
    • United States Court of Appeals (New York)
    • November 21, 1968
    ...with a misdemeanor--is involved (People v. D'Agostino, supra; People v. Groos, supra). Where the bill is not verified (People v. Radak, 52 Misc.2d 300, 275 N.Y.S.2d 937; People v. Groos, supra; People v. Sack, 54 Misc.2d 815, 283 N.Y.S.2d 402, contra; People v. Baratta, 56 Misc.2d 447, 288 ......
  • Hyatt v. State, No. 50449
    • United States
    • United States Court of Appeals (Georgia)
    • April 17, 1975
    ...York. A simple check of the form suffices; the defendant may determine whether it is authorized or not. In People ex rel. Panek v. Rodak, 52 Misc.2d 300, 275 N.Y.S.2d 937, 942, the court observed: 'It is also noted that the defendant has been charged by the issuance of a uniform traffic tic......
  • People v. Weale
    • United States
    • New York County Court
    • February 1, 1967
    ...v. Martindale, 6 Misc.2d 85, 162 N.Y.S.2d 806; People v. Blattman, 50 Misc.2d 606, 270 N.Y.S.2d 903; cf. People ex rel. Planek v. Radak, 52 Misc.2d 300, 275 N.Y.S.2d 937.) In the instant case there is no demonstrable evidence the defendant failed to understand the charge brought against him......
  • People v. Sack
    • United States
    • New York County Court
    • October 3, 1967
    ...such it must be verified. The failure to verify a bill of particulars is a jurisdictional defect and was not waived. See People v. Radak, 52 Misc.2d 300, 275 N.Y.S.2d Further, the Police Court of the City of Schenectady is a court of limited territorial jurisdiction. Nowhere does the traffi......
4 cases
  • People v. Boback
    • United States
    • United States Court of Appeals (New York)
    • November 21, 1968
    ...with a misdemeanor--is involved (People v. D'Agostino, supra; People v. Groos, supra). Where the bill is not verified (People v. Radak, 52 Misc.2d 300, 275 N.Y.S.2d 937; People v. Groos, supra; People v. Sack, 54 Misc.2d 815, 283 N.Y.S.2d 402, contra; People v. Baratta, 56 Misc.2d 447, 288 ......
  • Hyatt v. State, No. 50449
    • United States
    • United States Court of Appeals (Georgia)
    • April 17, 1975
    ...York. A simple check of the form suffices; the defendant may determine whether it is authorized or not. In People ex rel. Panek v. Rodak, 52 Misc.2d 300, 275 N.Y.S.2d 937, 942, the court observed: 'It is also noted that the defendant has been charged by the issuance of a uniform traffic tic......
  • People v. Weale
    • United States
    • New York County Court
    • February 1, 1967
    ...v. Martindale, 6 Misc.2d 85, 162 N.Y.S.2d 806; People v. Blattman, 50 Misc.2d 606, 270 N.Y.S.2d 903; cf. People ex rel. Planek v. Radak, 52 Misc.2d 300, 275 N.Y.S.2d 937.) In the instant case there is no demonstrable evidence the defendant failed to understand the charge brought against him......
  • People v. Sack
    • United States
    • New York County Court
    • October 3, 1967
    ...such it must be verified. The failure to verify a bill of particulars is a jurisdictional defect and was not waived. See People v. Radak, 52 Misc.2d 300, 275 N.Y.S.2d Further, the Police Court of the City of Schenectady is a court of limited territorial jurisdiction. Nowhere does the traffi......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT