People v. Abajian

• Decision Date: 05 January 1989
• Citation: 142 Misc.2d 250,537 N.Y.S.2d 449
• Parties: The PEOPLE of the State of New York v. Richard ABAJIAN, Defendant.
• Court: New York Justice Court

Page 449

537 N.Y.S.2d 449

142 Misc.2d 250

The PEOPLE of the State of New York v. Richard ABAJIAN, Defendant.

Justice Court, Village of South Nyack Rockland County.

Jan. 5, 1989.

Stanley Weiner, Spring Valley, for defendant.

No appearance for the People.

DANIEL MARKEWICH, Acting Justice.

This is a motion to dismiss a simplified traffic information pursuant to CPL 170.30(1)(a) and 170.35(1)(a) on the ground that it is not sufficient on its face within the requirements of CPL 100.40(2). The motion raises two interesting questions of particular significance to criminal litigation in the justice courts. First, in a court where neither the district attorney nor the village attorney handles traffic infractions, who if anyone, as the "prosecutor" for "the people," must be served with a motion to dismiss the simplified information? Secondly, may the simplified information be "amended," in response to a motion to dismiss, so as to supply the supporting deposition that had been previously timely requested but not furnished?

The operative facts herein are that defense counsel made timely request pursuant to CPL 100.25(2) for a supporting deposition of the complainant police officer, and we thereupon directed the court clerk to notify the officer to comply; but the clerk inadvertently failed to do so, with the result that no supporting deposition was forthcoming. After thirty days had passed, defendant moved to dismiss.

As CPL 170.45 and 210.45(1) require, defendant's motion was made in writing, in the form of a letter memorandum from defense counsel to the court dated November 4, 1988. See also, People v. Fattizzi, 98 Misc.2d 288, 413 N.Y.S.2d 804 (App.T., 9th and 10th Dists.1978). However, the motion was not made upon "notice to the people," as the statutes and case law also mandate, since we initially concurred in defense counsel's suggestion that in the absence of the district attorney, who as a policy matter has chosen not to appear as prosecutor of traffic infractions in this court, there was no representative of "the people" to be notified of defendant's motion. For the reasons that follow, we have now concluded that State Trooper Angel Abreu, the arresting officer and complainant, is the prosecutor representing "the people" in this criminal action and therefore ought to have been notified of the pendency of this motion. ¹

The simplified traffic information herein correctly sets forth that it is brought in the name of the "People of the State of New York." General Construction Law 18-a provides that every " 'criminal action' is prosecuted in the name of the people of the State of New York," and CPL 1.20(1) provides that "the state" is "plaintiff" in every criminal action and that every accusatory instrument "must be entitled 'the People of the State of New York' " against the designated defendant. But neither of these statutes tells us who must or may represent "the people." That issue must be determined by resort to a combination of statute and case law.

CPL 1.20(31) defines a "prosecutor" as "a district attorney or any other public servant who represents the people in a criminal action." CPL 1.20 provides generally that the definitions contained in Penal Law 10.00 are equally applicable to the Criminal Procedure Law. Penal Law 10.00(15) defines a "public servant" as "any public officer or employee of the state or of any political subdivision thereof or of any governmental instrumentality within the state"; this would certainly include a state trooper. But since a state trooper is not a "district attorney" as defined by CPL 1.20(32), the question still remains in what circumstances a trooper or other police officer may represent the people as prosecutor.

People v. Wyner, 207 Misc. 673, 675, 142 N.Y.S.2d 393 (West.Co.Ct.1955), noted that "Prosecutions of misdemeanors and offenses in the lower courts are usually conducted by local authorities, that is, by the police, state troopers and other local public officials." This language was cited with approval in Johnson v. Boldman, 24 Misc.2d 592, 203 N.Y.S.2d 760 (Tioga Sup.Ct. 1960). In People v. DeLeyden, 10 N.Y.2d 293, 220 N.Y.S.2d 961, 177 N.E.2d 924 (1961), a conviction for speeding prosecuted by a deputy sheriff was affirmed.

People v. Schildhaus, 4 N.Y.2d 883, 174 N.Y.S.2d 465, 150 N.E.2d 768 (1958), implicitly held that the corporation counsel had authority to prosecute sanitary code violations. People v. Leombruno, 10 N.Y.2d 900, 223 N.Y.S.2d 516, 179 N.E.2d 517 (1961), held that a village attorney may prosecute a charge of disorderly conduct. In People v. Czajka, 11 N.Y.2d 253, 254, 228 N.Y.S.2d 809, 183 N.E.2d 216 (1962), it was held that traffic offenses "may be prosecuted in courts of special sessions by administrative officers and attorneys other than the District Attorney."

A year later, the seminal case of People v. Van Sickle, 13 N.Y.2d 61, 242 N.Y.S.2d 34, 192 N.E.2d 9 (1963), held that a criminal conviction need not be reversed solely because a lay complaining witness was allowed to conduct the prosecution. But the majority added in dictum that although the district attorney or his deputy need not be physically present at every criminal hearing, he "must set up a system whereby he knows of all the criminal prosecutions in his county and either appears therein in person or by assistant or consents to appearance on his behalf by other public officers or private attorneys." (Supra, at 62-63, 242 N.Y.S.2d 34, 192 N.E.2d 9.

According to Judge Fuchsberg, concurring in People v. Rosenberg, 45 N.Y.2d 251, 262, 408 N.Y.S.2d 368, 380 N.E.2d 199 (1978), the holding of Van Sickle, supra, is merely that a "conviction will not be reversed on appeal solely because a prosecutor improperly acted ultra vires in prosecuting the case." Read v. Sacco, 49 A.D.2d 471, 375 N.Y.S.2d 371 (2d Dept.1975), may therefore stand only for the related proposition that such a conviction will not be denied collateral estoppel or res judicata effect in a subsequent civil action.

At least three reported New York City Criminal Court decisions have held that where the district attorney is aware of the existence of a term of a court and chooses not to staff it, the dictates of Van Sickle, supra, have been complied with and, therefore, cases may be prosecuted by other persons. People v. Citadel Management Co., Inc., 78 Misc.2d 626, 355 N.Y.S.2d 976 (N.Y.Crim.Ct.1974); People v. Anonymous, 126 Misc.2d 673, 481 N.Y.S.2d 987 (N.Y.Crim.Ct.1984); People v. Vial, 132 Misc.2d 5, 502 N.Y.S.2d 930 (N.Y.Crim.Ct.1986). The state attorney general does not agree. 1965 Op.Atty.Gen. 118; 1966 Op.Atty.Gen. 125; 1969 Op.Atty.Gen. 54; 1979 Op.Atty.Gen. 28; 1979 Op.Atty.Gen. 245; 1986 Op.Atty.Gen. 123. Rather, the attorney general would hold that, to fulfill the requirements of Van Sickle, supra, the district attorney must "set up a system whereby the required consent could be conferred on others for a class of cases in advance of the offense, provided that the district attorney receives a report of all cases not personally handled by his office." See also, People v. Vlasto, 78 Misc.2d 419, 355 N.Y.S.2d 983 (N.Y.Crim.Ct.1974).

The issue is not free from doubt. See Conway v. Village of Mount Kisco, N.Y., 750 F.2d 205, 215, n. 14 (2d Cir.1984): "The question is open on remand whether the prosecution could properly have been initiated without the district attorney's consent." We concur with the attorney general in holding that Van Sickle, supra, is not complied with merely because the district attorney knows of, and chooses not to staff, a term of court. Fortunately, however, that is not the procedure in this village court. Although the district attorney does not prosecute traffic infractions, his assistant does attend each semi-monthly calendar call of the court to handle the other criminal actions pending therein and thus clearly has the opportunity, by his presence, to become aware of all pending traffic infractions as well. That, in our judgment, constitutes sufficient compliance with the requirement of Van Sickle, supra, that the district attorney must set up a system whereby he is aware of all of the prosecutions pending before the court even though he chooses not to handle some classifications of cases.

The issue of who may prosecute such cases in the absence of the district attorney when Van Sickle, supra, is complied with is rendered more difficult by two recent decisions of the Court of Appeals. Darvin M. v. Jacobs, 69 N.Y.2d 957, 959, 516 N.Y.S.2d 641, 509 N.E.2d 336 (1987), seems to hold that, pursuant to the County Law, crimes and offenses "must be prosecuted by a District Attorney." A traffic infraction is, of course, an "offense," albeit it is not a crime. Penal Law 10.00(2); CPL 1.20(39). Della Pietra v. State of New York, 71 N.Y.2d 792, 796, 530 N.Y.S.2d 510, 526 N.E.2d 1 (1988), observes: "With few exceptions, the Legislature has delegated the responsibility for prosecuting persons accused of crime solely to the District Attorney." We take the foregoing to mean at least that the dictum of Van Sickle, supra, remains undiluted; we shall not assume that any further restrictions on Van Sickle, supra, were intended by the language of these two recent cases.

Darvin M., at 959, 516 N.Y.S.2d 641, 509 N.E.2d 336, supra, declares that in a criminal action "a 'prosecutor' represents the People (CPL 1.20[31] )." Pursuant to the case law and to Village Law 20-2006(2), such a "prosecutor" may of course be the village attorney ², but that official does not handle traffic infractions in this village court. In the circumstances, we hold that since Trooper Abreu is a "public servant" within the definition of Penal Law 10.00(15), he is an appropriate prosecutor, and the actual prosecutor, of the present criminal action pursuant to CPL 1.20(31). That is to say, Trooper Abreu "represents the people" in the present case. See also, 1965 Op.Atty.Gen. 118, supra; 1979 Op.Atty.Gen. 28, supra. ³

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