People ex rel. Siegal, on Behalf of Schildhaus v. Dros

• Decision Date: 05 April 1962
• Citation: 182 N.E.2d 106,227 N.Y.S.2d 431,11 N.Y.2d 167
• Parties: , 182 N.E.2d 106 The PEOPEL of the State of New York ex rel. Herbert S. SIEGAL, on Behalf of Arnold SCHILDHAUS, Appellant, v. Edward DROS, as Warden of the Workhouse of the City of New York, Hart Island, respondent.
• Court: New York Court of Appeals Court of Appeals

Page 431

227 N.Y.S.2d 431

11 N.Y.2d 167, 182 N.E.2d 106

The PEOPEL of the State of New York ex rel. Herbert S SIEGAL, on Behalf of Arnold SCHILDHAUS, Appellant, v. Edward DROS, as Warden of the Workhouse of the City of New York, Hart Island, respondent.

Court of Appeals of New York.

April 5, 1962.

Arnold Schildhaus, New York City, for appellant.

Isidore Dollinger, Dist. Atty. (Walter E. Dillon, New York City, of counsel), for respondent.

FROESSEL, Judge.

Appellant was tried in the Municipal Term of the New York City Magistrates' Court on the basis of an unsworn information charging him with violations of sections 78 and 80 of the Multiple Dwelling Law, Consol.Laws, c. 61, and sections D26-3.1 and D26-3.2 of the Multiple Dwelling Code (Administrative Code, ch. 26, tit, D) of the City of New York. The court found defendant 'guilty as charged'. The question presented on this appeal is whether the fact that the information, which also served as the basis for a warrant of arrest, was not sworn to deprived the court of jurisdiction to try appellant thereon.

Where a defendant has been convicted of a misdemeanor, rather than an offense of less than the grade of misdemeanor, it can no longer be doubted that an unsworn information is jurisdictionally defective (People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d 707, 143 N.E.2d 901; People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 79 N.E. 330, 10 L.R.A.,N.S., 159). In the Scott case, where this precise question was presented (see 3 N.Y.2d p. 152, 164 N.Y.S.2d p. 710, 143 N.E.2d p. 903), we noted that it would be a 'dangerous practice' to treat an unverified paper as the equivalent of an information, and held (p. 153, 164 N.Y.S.2d p. 712, 143 N.E.2d pp. 904-905): 'The requirement that a prosecution for misdemeanor be based upon a sworn information * * * is an essential guarantee to a defendant of a fundamental right, namely, that he be not punished for a crime without a formal and sufficient accusation, and this right may not be waived by a plea of guilty (citations omitted). 'Forms and procedure still have their place and purpose in the administration of the law; without them we would have chaos' (People v. Zambounis, 251 N.Y. 94, 97, 167 N.E. 183, 184).'

In People v. Hamm, 9 N.Y.2d 5, 210 N.Y.S.2d 508, 172 N.E.2d 275 we ordered defendant's judgment of conviction of the offense of disorderly conduct vacated, because the information 'was a complete nullity a mere scrap of paper' (p. 10, 210 N.Y.S.2d p. 512, 172 N.E.2d p. 278); we noted that in addition to failure to state defendant's name, the information was unsworn to. In arriving at our decision, we observed (p. 12, 210 N.Y.S.2d p. 513, 172 N.E.2d pp. 278-279) that 'serious consequences may follow conviction for an offense as well as for a misdemeanor', and (p. 11, 210 N.Y.S.2d p. 513, 172 N.E.2d p. 278) quoted with approval the following language from People ex rel. Davis v. Sheriff, 3 Misc.2d 231, 233, 154 N.Y.S.2d 748, 750: 'While I am mindful of the fact that * * * we are here dealing with a so-called 'offense', nevertheless, where such offenses is of the type which provides a maximum jail sentence of six months, I believe that all our traditional procedures and safeguards required in a prosecution for a misdemeanor, should be likewise complied with.'

The Hamm decision was definitely based on two grounds: lack of verification as well as failure to name the defendant, and we recognized the necessity for observing procedural safeguards in prosecutions for offenses as well as misdemeanors. Hamm was but the logical extension of Scott, recognizing as it did the serious consequences which might flow from conviction for an offense.

The penalties provided for violation of the Multiple Dwelling Code are illustrative of the severe consequences following a conviction for an offense (Administrative Code, § D26-8.0). In the instant case, the Corporation Counsel recommended that the court impose the maximum sentence, a $1,000 fine and a one-year term of imprisonment, since this was not the first conviction; the court declined to follow the recommendation and imposed a fine of $500 or an alternative 30-day sentence. Surely, where a defendant is subject to a year's imprisonment in a State prison (Penal Law, § 2182, Consol.Laws. c. 40) and a substantial fine, it may not be argued that the so-called offense is a minor matter in the disposition of which procedural requirements need not be strictly observed.

Moreover, the fact is that one offense of which appellant stands convicted, violation of section 80 of the Multiple Dwelling Law, must, by statutory mandate, be treated procedurally as a misdemeanor. Subdivision 1-a of section 304 of the Multiple Dwelling Law provides, in relevant part: 'For the purpose of conferring jurisdiction upon courts and judicial officers generally such violations under this subdivision shall be deemed misdemeanors and for such purpose only all...