People on Complaint of Powell v. Oser

• Decision Date: 22 January 1958
• Citation: 9 Misc.2d 585,170 N.Y.S.2d 277
• Parties: The PEOPLE of the State of New York on the Complaint of Patrolman John POWELL, v. Philip OSER, Defendant. City Magistrates' Court of the City of New York, Lower Manhattan Summons Court, Borough of Manhattan
• Court: New York Magistrate Court

Page 277

170 N.Y.S.2d 277

9 Misc.2d 585

The PEOPLE of the State of New York on the Complaint of

Patrolman John POWELL, v. Philip OSER, Defendant.

City Magistrates' Court of the City of New York, Lower

Manhattan Summons Court, Borough of Manhattan.

Jan. 22, 1958.

Rose L. Weisler, Legal Bureau, Police Dept., New York City, of the City of New York, for the People.

Archibald Palmer, New York City, for defendant.

STEPHEN S. SCOPAS, City Magistrate.

On Sunday, December 15, 1957, a patrolman employed by the City of New York entered the first floor loft occupied by the Reliable Clothing Manufacturers, Inc., located on Fifth Avenue, between 16th and 17th Streets. The complaining officer found only one man on the premises, to wit: the defendant, who was working in the rear of the loft premises, cutting material for a pair of trousers.

The officer further testified that he had not been attracted to the defendant's place of business because of any noise emanating therefrom, nor was there any machinery in operation therein. While there was some confusion as to what happened, the facts can easily be reconstructed from all of the testimony. However, the uncontroverted fact remains that the Reliable Clothing Manufacturers, Inc. is engaged in a wholesale trouser business, and that the defendant is the President of said Corporation.

When the officer first evinced his interest in the purchase of a pair of trousers, the defendant replied, 'No, I do not sell them'. It may be inferred that the officer first received this answer because the defendant's firm does not generally sell to the public, and not because it was Sunday. The complaining officer persisted in his quest for a pair of trousers, and, finally, according to his testimony, the defendant showed him a pair of trousers and asked if they would do. The officer then asked the price, and the defendant replied, '$7.45'. The complaining officer then identified himself and issued a summons.

The officer was confused as to whether he issued the summons for a violation of Section 2147 of the Penal Law (Public Traffic on Sunday) or for a violation of Section 2143 of the Penal Law (Labor prohibited on Sunday). The Police Department maintains that it was for a violation of Section 2147 of the Penal Law.

The fact that the defendant was an officer of a corporation does not constitute a bar to his prosecution in the instant case. In People v. Klinger, 164 Misc. 530, 300 N.Y.S. 408, 412, the Court said of such a defense:

'* * * Corporate officers may be criminally liable for their own acts although performed in their offical capacity as such officers. People v. Cooper, 200 App.Div. 413, 193 N.Y.S. 16; 3 Fletcher on Corporations, p. 877 * * *'

The fact that the summons referred to a violation of Section 2142 or any other Section in lieu of Section 2147 of the Penal Law is immaterial and irrelevant. As recently as July, 1957, in the case of People v. Scott, 3 N.Y.2d 148, 150, 151, 164 N.Y.S.2d 707, 708, 709, the Court of Appeals affirmed the principle that a summons is merely a notice to come to Court so that an investigation may be made with regard to a charge made against a person. In that case, the Court said:

'* * * From the form of the * * * summons * * * it is clear that it is not intended to fulfill the function of an information. * * * rather, it is a notice to him to appear in a given court on a given day, at which time and place he will be charged with a specific crime * * *'.

In the instant case the complaint charges the defendant with a violation of Section...