People on Complaint of Jackson v. Schildhaus

• Decision Date: 30 July 1957
• Citation: 169 N.Y.S.2d 693,8 Misc.2d 8
• Parties: PEOPLE of The State of New York on the Complaint of Rosa JACKSON v. Arnold SCHILDHAUS, Defendant. City Magistrates' Court of City of New York, Manhattan Arrest Court, Borough of Manhattan
• Court: New York Magistrate Court

Page 693

169 N.Y.S.2d 693

8 Misc.2d 8

PEOPLE of The State of New York on the Complaint of Rosa JACKSON v. Arnold SCHILDHAUS, Defendant.

City Magistrates' Court of City of New York, Manhattan

Arrest Court, Borough of Manhattan.

July 30, 1957.

Peter C. Murray (Kenneth L. Shorter, of counsel), for the complaining witness, Rosa Jackson.

Herbert S. Seigal, New York City, for the defendant.

Arnold Schildhaus, pro se.

ROBERT F. MAHONEY, City Magistrate.

The defendant is charged in the usual form of affidavit of complaint with a violation of section 2040 of the Penal Law of the State of New York. The affidavit of complaint is signed by a tenant against the defendant 'as agent of the landlord'. A violation of that section had been a misdemeanor malum in se, until the Legislature of 1954 reduced it to that of an offense and changed the penalty for its violation from a fine of $500 or one year imprisonment or both, to a fine of $50 or six months' imprisonment or probation or all. Laws 1954, ch. 733. However, the language of the section when it was a misdemeanor malum in se, remains unchanged under its new designation of an offense. The technical proof required by that language, the court is well aware, makes it practically an impossibility for a tenant, as a People's witness, to prove a charge, for instance, of failure of a landlord, or agent of his property, to supply heat as legally required. The helplessness in a trial of the tenant signing such an affidavit of complaint, invariably a layman, as here, is frequently experienced by the court.

When a violation of section 2040 of the Penal Law was a misdemeanor, the District Attorney of the County was obliged to file and prosecute an information in the Court of Special Sessions, sec. 37, Code of Criminal Procedure. That court had sole jurisdiction of an information predicated upon a violation of section 2040 of the Penal Law, § 31, Code of Criminal Procedure.

A tenant's helplessness as a complaining witness along with the District Attorney's obligation to appear and prosecute misdemeanors on behalf of the 'People of the State of New York', is referred to by reason of the citation by the parties hereto, of my opinion in the case of People on Complaint of Kohler v. Scharer, 1945, 185 Misc. 616, 58 N.Y.S.2d 87. There, a duly sworn Federal prosecuting officer presented the case of the violation of a Federal Office of Price Administration regulation, made the law of the State of New York by legislative act, as only an infraction, and under war emergency conditions.

Counsel here is a private practitioner and contends that 'the presence for counsel for the complaining witness is not just as a privilege but as a matter of right'. 'If there is a valid law and the defendant has breached it, any qualified attorney may conduct the prosecution in the absence of the district attorney'. There is no provision of law or decision cited to support this assertion.

The constitution provides the right of a defendant to be represented by counsel, but not the 'People of the State of New York'. The 'People of the State of New York' are designated as plaintiff in a criminal action; not a 'complaining witness' as such. Code Criminal Procedure § 6. The...