People v. Boback

CourtNew York Court of Appeals
Writing for the CourtKEATING; FULD
Citation243 N.E.2d 135,295 N.Y.S.2d 912,23 N.Y.2d 189
Decision Date21 November 1968
Parties, 243 N.E.2d 135 The PEOPLE of the State of New York, Appellant, v. Joseph C. BOBACK, Jr., Respondent. The PEOPLE of the State of New York, Appellant, v. Rudolph W. MARKWART, Respondent.

Page 912

295 N.Y.S.2d 912
23 N.Y.2d 189, 243 N.E.2d 135
The PEOPLE of the State of New York, Appellant,
v.
Joseph C. BOBACK, Jr., Respondent.
The PEOPLE of the State of New York, Appellant,
v.
Rudolph W. MARKWART, Respondent.
Court of Appeals of New York.
Nov. 21, 1968.

Page 913

[243 N.E.2d 136] [23 N.Y.2d 190] Albert W. Schneider, Dist. Atty. (Henry D. Blumberg, Herkimer, of counsel), for appellant in both actions.

No appearance for respondent in the first above-entitled action.

Carl G. Scalise, Herkimer, for respondent in the second above-entitled action.

KEATING, Judge.

Is the use of the Simplified Traffic Information (Code Crim.Proc., § 147--a et seq.) authorized where the information is based solely upon information and belief, and, if so, is its employment constitutional? These are the questions raised by two cases from the Herkimer County Court.

Boback was convicted of the offense of 'Following Too Closely' (Vehicle and Traffic Law, Consol.Laws, c. 71, § 1129, subd. (a)) and was fined $20. On February 21, 1967, about 3:15 P.M., defendant was driving on Route 5 in the Town of Schuyler and became involved in an accident. Thereafter, he was presented with a Uniform Traffic Ticket. Defendant appeared before a Justice of the Peace and, at the arraignment, was advised of his right to a bill of particulars (Code Crim.Proc., § 147--f). Again, on [23 N.Y.2d 191] the date of trial on April 27, 1967, the same advice was given the defendant. Through his counsel, he stated that he did not want a bill of particulars. The trial proceeded. During its course, it developed that the State Trooper who made the Simplified Traffic Information did not witness the accident in which this defendant was involved, but came upon the scene a substantial time later. It was clear that the trooper[243 N.E.2d 137] had obtained his information from someone else. The Simplified Traffic Information did not so state, nor was there any affidavit or deposition attached to the information so show the source of his information and the foundation for his belief.

Boback appealed his conviction before the Justice of the Peace to the Herkimer County Court which held the Simplified Traffic Information defective, based, as it was, upon information and belief, and, therefore,

Page 914

the Magistrate was deprived of jurisdiction under People v. James, 4 N.Y.2d 482, 176 N.Y.S.2d 323, 151 N.E.2d 877; People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d 707, 143 N.E.2d 901, and People v. Schwer, 7 N.Y.2d 838, 196 N.Y.S.2d 711, 164 N.E.2d 727.

In the second case, Markwart was charged and convicted of leaving the scene of an accident (Vehicle and Traffic Law, § 600), a misdemeanor, was fined $100, and his license was revoked. The fact pattern is not materially different from that in the Boback case. Relying on his earlier decision in the Boback case, the County Court Judge reversed the conviction and dismissed the information. 1

The orders of the Herkimer County Court in both cases should be reversed and the judgments of conviction reinstated.

In People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d 707, 143 N.E.2d 901, supra, the absence of a verified information on a misdemeanor traffic charge was fatal to the jurisdiction of Special Sessions even though the information was not used to support an arrest, but solely as a pleading, while in People v. James (supra) a sworn information charging a misdemeanor based entirely on information and belief was also held insufficient as a pleading. (See, also, People v. Schwer, 7 N.Y.2d 838, 196 N.Y.S.2d 711, 164 N.E.2d 727, supra, and People v. Jeffries, 19 N.Y.2d 564, 281 N.Y.S.2d 67, 227 N.E.2d 870.)

This court, however, has already held that the use of the Simplified Traffic Information is authorized where the information[23 N.Y.2d 192] is signed by an officer whose knowledge of the facts is based upon information and belief. In People v. Weeks, 13 N.Y.2d 944, 244 N.Y.S.2d 316, 194 N.E.2d 132, defendant was issued a Simplified Traffic Information under section 147--g of the Code of Criminal Procedure for speeding. The information did not state that it was based upon information and belief and it was not accompanied by supporting affidavits. Defendant pleaded not guilty and requested a bill of particulars which was supplied in the form of supporting affidavits, including one by the officer who operated the radar unit. The County Court had held the information defective since it did not state that it was based upon information and belief and it was not accompanied by supporting affidavits. This defect, the court stated, was not cured by the bill of particulars. We reversed: 'The challenged simplified traffic information, being substantially in the form prescribed by the Commissioner of Motor Vehicles pursuant to section 207 of the Vehicle and Traffic Law, when coupled with the bill of particulars of the violation charged filed by the peace

Page 915

officers, was sufficient to inform defendant and the court of the nature and character of the violation with which defendant was charged and to satisfy the applicable statutory requirements' (supra, p. 945, 244 N.Y.S.2d p. 317, 194 N.E.2d p. 132).

The County Court here as well as other nisi prius courts have read...

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25 practice notes
  • State v. Gonzalez
    • United States
    • United States State Supreme Court (New Jersey)
    • April 24, 1989
    ...nor constitutional provisions require verification of complaint where a summons has been served for traffic violation); People v. Boback, 23 N.Y.2d 189, 192-94, 295 N.Y.S.2d 912, 915-917, 243 N.E.2d 135, 138 (1968) (complaint as part of uniform traffic ticket not only need not be sworn, but......
  • People v. Farmer
    • United States
    • New York Court of Appeals
    • April 7, 1975
    ...are required to look to substance rather than form (Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232; cf. People v. Boback, 23 N.Y.2d 189, 195, 295 N.Y.S.2d 912, 917, 243 N.E.2d 135, Here the defendant had consented to a Breathalyzer test. Its results were available to him as ......
  • City of New York v. De Lury
    • United States
    • New York Court of Appeals
    • November 21, 1968
    ...Justice FRANKFURTER, after observing that we are "a government of laws and not of men" (p. 307, 67 S.Ct. 677, p. 703), went on to [243 N.E.2d 135] say in language most appropriate here (p. 312, 67 S.Ct. 677, p. 'In our country law is not a body of technicalities in the keeping of specialist......
  • Susser v. Fried
    • United States
    • New York City Court
    • September 20, 1982
    ...v. Baran, Sup., 35 N.Y.S.2d 906), and no penalty followed upon the mere failure to appear by the person summoned (People v. Boback, 23 N.Y.2d 189, 295 N.Y.S.2d 912, 243 N.E.2d 135; Mormon v. Baran, supra ). Presentation to the court of either testimony or affidavits establishing probable ca......
  • Request a trial to view additional results
25 cases
  • State v. Gonzalez
    • United States
    • United States State Supreme Court (New Jersey)
    • April 24, 1989
    ...nor constitutional provisions require verification of complaint where a summons has been served for traffic violation); People v. Boback, 23 N.Y.2d 189, 192-94, 295 N.Y.S.2d 912, 915-917, 243 N.E.2d 135, 138 (1968) (complaint as part of uniform traffic ticket not only need not be sworn, but......
  • People v. Farmer
    • United States
    • New York Court of Appeals
    • April 7, 1975
    ...are required to look to substance rather than form (Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232; cf. People v. Boback, 23 N.Y.2d 189, 195, 295 N.Y.S.2d 912, 917, 243 N.E.2d 135, Here the defendant had consented to a Breathalyzer test. Its results were available to him as ......
  • City of New York v. De Lury
    • United States
    • New York Court of Appeals
    • November 21, 1968
    ...Justice FRANKFURTER, after observing that we are "a government of laws and not of men" (p. 307, 67 S.Ct. 677, p. 703), went on to [243 N.E.2d 135] say in language most appropriate here (p. 312, 67 S.Ct. 677, p. 'In our country law is not a body of technicalities in the keeping of specialist......
  • Susser v. Fried
    • United States
    • New York City Court
    • September 20, 1982
    ...v. Baran, Sup., 35 N.Y.S.2d 906), and no penalty followed upon the mere failure to appear by the person summoned (People v. Boback, 23 N.Y.2d 189, 295 N.Y.S.2d 912, 243 N.E.2d 135; Mormon v. Baran, supra ). Presentation to the court of either testimony or affidavits establishing probable ca......
  • Request a trial to view additional results

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