People ex rel. Refinburg v. Bremner

• Decision Date: 04 October 1966
• Citation: 273 N.Y.S.2d 682,51 Misc.2d 632
• Parties: The PEOPLE of the State of New York ex rel. E. R. REFINBURG, Plaintiff, v. Myrl H. BREMNER, Defendant.
• Court: New York Court of Special Sessions

Page 682

273 N.Y.S.2d 682

51 Misc.2d 632

The PEOPLE of the State of New York ex rel. E. R. REFINBURG, Plaintiff, v. Myrl H. BREMNER, Defendant.

Court of Special Sessions of Town of Elbridge, Onondaga County.

Oct. 4, 1966.

Myrl H. Bremner, in pro. per.

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

ROGER SCOTT, Judge.

Defendant moves to dismiss the uniform traffic complaint number 1407594 which accuses him of speeding on September 23, 1966, in violation of Section 1180(b), par. 3 of the Vehicle and Traffic Law.

The basis of the 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. The defendant was issued a summons which purportedly was a uniform traffic summons pursuant to section 147--e of the Code of Criminal Procedure. Section 147--e of the Code of Criminal Procedure provides that a simplified traffic information may be substantially in the form set forth in the section, or in a form prescribed by the Commissioner of Motor Vehicles pursuant to section 207 of the Vehicle and Traffic Law. The complaint obviously is not the same complaint set forth in section 147--e of the Code of Criminal Procedure, and must therefore be intended to be a form prescribed by the Commissioner of Motor Vehicles pursuant to section 207 of the Vehicle and Traffic Law. It is well established that the rules and regulations of a department head to be effective and enforceable must be published. A review of the official computation of codes, rules and regulations of the State of New York in volume 15A shows that the Commissioner has prescribed specifications and procedure applicable to uniform traffic tickets. Section 91.7 (15 NYCRR 91.7) of the Commissioner's regulations provides that uniform traffic tickets must be in the form set forth in section 91.7 and that no variations from the format prescribed therein shall be permitted. Set forth following section 91.7 is the format prescribed. This Court is particularly concerned with the format of the complaint set forth, since the complaint is the information in a traffic violation and the information is the foundation of a Magistrate's jurisdiction. People v. Bush, 140 Misc. 59, 249 N.Y.S. 723. People v. Orzechowski, 4 Misc.2d 484, 158 N.Y.S.2d 884. People on Inf. Boynton v. Leiby, 184 Misc. 21, 52 N.Y.S.2d 493.

The rules concerning an information in a criminal matter also apply to a traffic offense. People v. Orzechowski, supra.

Where the information is defective, a Justice acquires no jurisdiction and there can be no conviction. People v. Staples, 5 Misc.2d 619, 162 N.Y.S.2d 131. People v. Wojcinski, 5 Misc.2d 292, 159 N.Y.S.2d 539.

In this case it is noted that there is a considerable change in the complaint filed against the defendant and that set forth in the Commissioner's regulations. The wording has been changed and an additional section has been added. The added section is apparently intended to be an affidavit by the operator of the radar device stating that he observed the defendant by radar proceeding at the speed indicated in the...