People ex rel. Panek v. Radak

• Decision Date: 05 December 1966
• Citation: 52 Misc.2d 300,275 N.Y.S.2d 937
• Parties: The PEOPLE of the State of New York ex rel. M. W. PANEK, Plaintiff, v. Ronald J. RADAK, Defendant.
• Court: New York Court of Special Sessions

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.

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 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 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 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 some record thereof, no matter how informal, so as to insure a proper review on appeal. People v. Giles, 152 N.Y. 136, 46 N.E. 326; People v. Wilkins, 281 N.Y. 224, 22 N.E.2d 349; People v. Saalfield, 14 N.Y.2d 915, 252 N.Y.S.2d 320, 200 N.E.2d 862.

It is therefore apparent that even in the absence of the District Attorney, or one of his assistants, the trial could proceed if the arresting officer was present. Failure to allow a defendant immediate trial on the return date of the summons without sufficient reason appearing therefor, is reversible error and an abuse of discretion, depriving the Justice of the Peace of further jurisdiction over the matter. People v. Wagner, 15 N.Y.2d 799, 259 N.Y.S.2d 598, 205 N.E.2d 693.

From the above, it would appear that the inability to afford the defendant an immediate trial, and especially in view of the distance required by him to appear in this Court may in itself be grounds for a dismissal. This Court notes that the American Bar Association was asked to assist in setting up the traffic court system for Dade County, in 1959, which includes the City of Miami, Florida. The uniform traffic ticket used in New York State was adopted from the model prepared from the Dade County system. There, the arresting officer is required to be in Court on the return of the summons. It is considered a fundamental part of due process. 'All motorists charged with hazardous moving violations must appear in Court; but, once there, they get fair treatment. Since hours of appearance are staggered, no one has to wait long. The arresting officer is in Court when each case is called so that the man who wants to plead not guilty has an immediate hearing.' You Can Have Decent Traffic Courts, by James P. Economos; District Traffic Court Program, American Bar Association.

The Reader's Digest for January, 1964, in an article concerning traffic courts, states: 'If you have a bad traffic court in your town, there is one thing you, as an individual can do. If you get a summons for an offense of which you are innocent, always plead not guilty. If the arresting officer is not in Court, move to dismiss for lack of prosecution.'

There apparently is a great deal of concern throughout the United States about the problems faced by an alleged violator of our traffic laws. The procedure whereby an innocent defendant must re-appear many times in Court before receiving a trial of the charges against him seems eminently unfair. The Constitutional and statutory provisions relating to a speedy trial are mandatory and the right of an accused thereunder cannot be frittered away by the laches of public officers. 22A C.J.S. Criminal Law § 467(2) p. 22. Our laws have taken good care to guard against oppression by their administrators, and it is our duty to see that their provisions in favor of humanity and the liberty of the citizens are duly enforced. People v. Goodwin, 1 Wheel.CR. 434. If, therefore, it should appear to us that there is any wanton or even unnecessary delay on the part of the police officer, or if the prisoner should justly complain of the delay, then an application would call upon the Judge to decide as to the extent of his powers, and whether he should not exert them for the release of the prisoner. People v. Goodwin, supra.

If a system is allowed in this State whereby a defendant can be deprived of his right to a speedy and an immediate trial, this system will be no better than systems used in some of our sister states of which there is consistent and justified criticism. What is good for one defendant is good for all defendants, and if the defendant be unjustly charged while on a trip...