People v. Baratta

• Decision Date: 26 March 1968
• Citation: 56 Misc.2d 447,288 N.Y.S.2d 976
• Parties: PEOPLE of the State of New York, Plaintiff, v. Robert BARATTA, Defendant.
• Court: New York District Court

Page 976

288 N.Y.S.2d 976

56 Misc.2d 447

PEOPLE of the State of New York, Plaintiff, v. Robert BARATTA, Defendant.

District Court of Nassau County, First District, Central Traffic Part.

March 26, 1968.

[56 Misc.2d 448] Robert M. dePoto, Syosset, for defendant.

DECISION AFTER TRIAL

HENRY J. KALINOWSKI, Judge.

The defendant on the 2nd day of October, 1967, received a summons for speeding. The 'complaint' was a part of the 'Uniform Traffic Ticket', (page two thereof), and the pertinent information appearing on the face thereof, reads as follows:

'on the 2nd of October 1967, at 1:00 A.M. Place--Lido Boulevard. Lido, T.O.H. in Violation of Section--Local Law of #7 Sec. 2.4 of 65 mph in 45 mph Zone.'

'Officer's Signature W. Walsh'

'Sworn to before me this 2 day of Oct. 1967

Lt. M. Rexsen 70'

The officer's signature is a carbon of his signature as appeared on the 'summons' or page one of the 'Uniform Traffic Ticket' packet.

The defendant at the time of trial moved to dismiss the Information (motion for judgment) on the following grounds:

1. That Local Law #7 of the Town of Hempstead was invalid.

2. The information should have alleged a violation of the Vehicle and Traffic Law (Section 1180(d).)

3. The Information was not properly signed and verified.

4. The Bill of Particulars was insufficient as it was not verified.

The Town of Hempstead by Resolution Number 511--1965 became subject to the Suburban Town Law effective January 1, 1966.

The Town Board of said Township on December 21, 1965, adopted 'Local Law Number 7 of 1965 * * * relating to vehicle speed limits'. Said local law became effective at midnight December 31, 1965.

On June 14, 1966, the Town Board of said Township adopted, 'Local Law Number 3--1966' which local law amended 'Local Law Number 7 of 1965' by adding thereto, 'Section 2.4 and Section 2.5.' Section 2.4 provided a new 45 m.p.h. Speed Zone on Lido Boulevard (Lido)--From Prescott Street to Meadowbrook Causeway. (The area traversed by the defendant when allegedly exceeding the established speed limit).

The defendant contends that Local Law No. 7 of 1965, was invalid at the time of enactment (December 21, 1965) as at that time Hempstead Township did not have Suburban Town Status and was thus powerless to effect said local law.

Section 50--a of the Town Law, Sub-section 4--states:

'After it shall have been finally determined pursuant to this section that a town shall become a suburban town, the town board shall have power to determine and make provision for any matter necessarily involved in the transition from its form of town government at the time of its becoming a suburban town to its government as a suburban town under the provisions of this article where such matter is not provided for by this article.'

It is the opinion of the writer that sufficient authority for the Boards' action in enacting Local Law No. 7, 1965, effective midnight December 31, 1965, is found in the above section.

The question as to whether a complaint is jurisdictionally defective where it specifies a violation of a local ordinance rather than section 1180 of the Vehicle and Traffic Law has been the basis of a number of reported lower court decisions, the last being People v. Kramer, 55 Misc.2d 550, 285 N.Y.S.2d 763, where it was held that it was jurisdictionally defective.

The Court in Kramer acknowledges that prior decisions hold an information sufficient if the defendant is fully advised of the act or acts relied upon to constitute the alleged violation, but holds that the more enlightened modern view is to consider it a fatal defect. I must disagree. The only purpose of an 'information' is to apprise the defendant of his acts which allegedly constitute a violation of an established rule of law. To complicate a 'simplified information' with technical demands would appear to be retrogressing into archaic practice.

The rationale in People v. Blattman, 50 Misc.2d 606, 270 N.Y.S.2d 903, where it was held that the omission of reference to the Vehicle and Traffic Law, Section 1180 was not fatal, is adopted by this Court in determining the question.

As to what constitutes a 'signature,' Section 46 of the General Construction Law provides:

'46. Signature

'The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with...