People on Complaint of Small v. Asherman

• Decision Date: 01 November 1961
• Citation: 223 N.Y.S.2d 614,31 Misc.2d 1039
• Parties: PEOPLE of the State of New York, on complaint of Officer W. J. SMALL, Complainant-Respondent, v. George ASHERMAN, Defendant-Appellant.
• Court: New York County Court

Page 614

223 N.Y.S.2d 614

31 Misc.2d 1039

PEOPLE of the State of New York, on complaint of Officer W J. SMALL, Complainant-Respondent, v. George ASHERMAN, Defendant-Appellant.

Westchester County Court.

Nov. 1, 1961.

Joseph F. Gagliardi, Dist. Atty. of Westchester, White Plains, for plaintiff.

Joseph J. Ferone, Eastchester, for defendant.

JOHN H. GALLOWAY, Jr., Judge.

Defendant-appellant was convicted of speeding in violation of the Speed Ordinance of the Village of Tuckahoe, by the Court of Special Sessions of that Village, Honorable Sidney Meilman, Acting Police Justice. The trial was held on June 15, 1960, without a jury. The Learned Justice reserved decision on defendant's motion to dismiss the information for failure to prove the violation charged, and on July 6, 1960 rendered judgment of conviction and imposed a suspended sentence. Defendant appeals, urging several grounds for reversal.

We consider appellant's third ground first, that the judgment of conviction is void and illegal because (a) the lower court was 'functus officio' on July 6th, 1960 when it rendered judgment; and (b) it was disqualified by law from rendering judgment on said date.

Appellant urges that the lower court lost jurisdiction when it reserved decision at the close of the trial, and was consequently 'functus officio' on July 6th, 1960 when it rendered judgment. By statute (Code of Criminal Procedure, § 702-a, subd. 3) and the weight of recent authority, (see People v. DeLuigi, 1955, West.Co.Ct ., Fanelli, J., 208 Misc. 537, 146 N.Y.S.2d 613, 616; People v. Kraemer, 1958, Suffolk Co.Ct., Munder, J., 14 Misc.2d 42, 177 N.Y.S.2d 425, 428) a court of special sessions does not lose jurisdiction by adjourning without date prior to its final disposition of a matter, having reserved decision at the conclusion of the trial, and we so hold in this case. Section 702-a, subd. 3 expressly provides: 'If, pending final disposition of the case, the magistrate shall happen to adjourn without day, the court shall nonetheless continue * * *.' (Emphasis supplied.)

The other branch of appellant's argument on this point is that by virtue of § 187 of the Village Law, the Acting Police Justice was disqualified by law from rendering judgment on July 6th, 1960, because concededly the Police Justice of the Village of Tuckahoe was actually present in the Village Hall at the time the Acting Justice rendered the judgment of conviction, and was therefore neither absent nor unable to act in the matter.

Section 180 of the Village Law confers upon magistrates jurisdiction to hear, try and determine charges of violations of Village Ordinances as follows: '1. A police justice, or, in case of his absence or inability to act, the acting police justice has exclusive jurisdiction, in the first instance.' (Emphasis supplied.)

Section 187 of the Village Law provides for the designation of an acting police justice and defines his power to act as follows: '* * * During the absence or inability of the police justice to perform the duties of his office, the acting police justice has all the powers and is subject to all the liabilities of a police justice within the Village.' (Emphasis supplied).

It is undisputed that the Police Justice was absent from the Village on June 15th, 1960 when the case came on for trial, and that the Acting Police Justice had authority to try the case; also that on July 6th, 1960, when the Court reconvened, the duly elected Police Justice was in the Village Hall and opened Court, and stated, in reference to this case and other cases tried in his absence by the Acting Police Justice and adjourned to that date, that 'sentence must and should be imposed by the judge who handled the matters to this point. * * *' Whereupon, the Acting Police Justice found defendant guilty and imposed sentence.

The return discloses that defendant's counsel thereupon challenged the Court's jurisdiction to render judgment and impose sentence, in view of § 187 of the Village Law above quoted, which he urged deprived the Court of the power to render judgment under the circumstances; and that the Learned Police Justice could not confer jurisdiction upon the Acting Police Justice by his statement made at the opening of Court on that day.

The question thus raised appears to be one of first impression in this Court. Research has not disclosed an authority directly in point. In People v. Vogler, 1957, Suffolk Co.Ct., 6 Misc.2d 226, 166 N.Y.S.2d 268, the defendant contended, upon appeal from a judgment of conviction of driving while intoxicated, that the Police Justice lacked jurisdiction to try the charge because he had been arraigned and had pleaded 'not guilty' before the Acting Police Justice who thereby acquired exclusive jurisdiction of the matter.

County Judge Munder rejected this, holding in the following language (page 271 of 166 N.Y.S.2d):

'An acting police justice in a village, who in the absence or temporary disability of the police justice arraigns a defendant, acts as the alter ego of the police justice and his power to act ceases on the return or removal of the disability of the police justice. He is then automatically disqualified. But the court of special sessions, having convened with the acting police justice presiding is properly continued before the police justice for the trial without a County Court order under § 702-a, Code of Criminal Procedure.'

Judge Munder then went on in a dictum to observe:

'It should here be noted that such automatic disqualification would not result after a trial has been properly opened before the acting police justice. In that event the general rule would prevail that 'when the trial of a case is once commenced, it must proceed to the end before the same court and jury'. People v. McPherson, 74 Hun 336, 26 N.Y.S. 236, 237.'

Thus the facts in the Vogler case are distinguishable from those in the case at bar; there the defendant was merely arraigned before the acting police judge, and the Court in effect held that no error resulted by reason of his trial and conviction before the police justice, the acting police justice's power to act having ceased upon the return and presence of the police justice at the opening of the trial.

Here, the defendant was arraigned and tried, without a jury, by the acting police justice. Upon the return of the Police Justice all that remained of the action was the Court's determination of guilt and sentence thereon. Did his return to court automatically disqualify the Acting Police Justice from rendering his determination of guilt and imposing a sentence thereon? In our opinion it did not.

In this case, the Court had reserved decision on defendant's motion to dismiss for failure to prove a violation of the Speed Ordinance, made at the close of the trial. Only the Acting Police Justice could properly determine the issue of defendant's guilt or innocence of the charge, he having seen and heard the People's witnesses and the defendant himself testify. 'When the defendant * * * is convicted * * * by the court * * * the court must render judgment thereon, of fine or imprisonment, or both, as the case may require'. (Section 717, Code of Criminal Procedure). Before sentence or punishment can be pronounced or inflicted, there must be a legal conviction for the crime or offense charged in a court having jurisdiction. (Section 31, Penal Law; People v. Rosenthal, 1939, 171 Misc. 954, 14 N.Y.S.2d 794).

The court said, in People v. Kraemer, 1958, 14 Misc.2d 42, 177 N.Y.S.2d 425, 428: 'There are two stages in every criminal action which in combination form the judgment. The first of these is the trial and determination of guilt and the second is the imposition of the sentence.' (Section 5, Code of Criminal Procedure). It is the Court and not the magistrate or justice, which renders judgment. Hence the record must show that the court was in session when judgment was rendered. (Lattimore v. People, 1854, 10 How.Pr. 336).

In our opinion there is no compelling reason, in logic or in law, why the trial portion of the first stage of the action should be nullified because of the return of the Police Justice, who cannot 'determine' guilt, having not presided at the trial.

To hold that the return of the Police Justice automatically or otherwise disqualified the Acting Police Justice from finally disposing of the case, as urged by appellant, constitutes in our opinion an unreasonably strict construction of § 187 of the Village Law productive of needless futility not intended by the Legislature in enacting that statute and § 702-a, subd. 3 of the Code of Criminal Procedure.

In view of these considerations we think the sounder interpretation of §§ 180 and 187 of the Village Law and of § 702-a, subd. 3 of the Code of Criminal Procedure is that the Acting Police Justice, having acquired jurisdiction to arraign and try the defendant, not only had jurisdiction to adjourn his court, but did not lose jurisdiction by reason of such adjournment, pending 'final disposition of the case' which necessarily includes the determination of guilt and the imposition of sentence. (People v. Kraemer, supra, at p. 428 of 177 N.Y.S.2d). It follows that the Court below...