People v. Byfield

• Decision Date: 20 February 1986
• Citation: 502 N.Y.S.2d 346,131 Misc.2d 884
• Parties: PEOPLE of the State of New York v. Barbara BYFIELD, Defendant.
• Court: New York City Court

Page 346

502 N.Y.S.2d 346

131 Misc.2d 884

PEOPLE of the State of New York v. Barbara BYFIELD, Defendant.

Criminal Court of the City of New York New York County, Part SAP II.

Feb. 20, 1986.

Donald Rosenkrantz, New York City, for defendant.

Frederick A.O. Schwarz, Jr., Corp. Counsel (John J. Cox, New York City, of counsel), for plaintiff.

IRA R. GLOBERMAN, Judge:

An appearance ticket charging a building use violation of the New York City Administrative Code was issued against one Barbara Byfield, apparently the owner of the building in question, but was served upon one Michael Bartz who described himself to the issuing inspection officer as "in charge" of the premises.

On the return date of the appearance ticket an information was filed with the court. Barbara Byfield did not personally respond although an attorney representing her "appeared" to answer the calendar. The attorney, on behalf of Ms. Byfield, now moves to dismiss the information on the grounds that the appearance ticket was not personally served as required by subdivision 2 of section 150.40 of the Criminal Procedure Law. The motion is denied.

Defendant's motion to dismiss reflects some confusion regarding the difference between personal jurisdiction in criminal and civil proceedings and the means by which it is obtained in each forum.

In a civil proceeding unless personal jurisdiction is obtained by some authorized means of serving process upon the defendant, or unless the defendant consents or submits, the court is without power to affect his rights (see CPLR Sec. 304). However, once service is lawfully effected, the court is empowered to determine a defendant's rights whether he appears or not (CPLR Sec. 3215). Because a defendant's rights may be adjudicated absent an appearance, the CPLR permits the defendant to contest the propriety of service without either conceding jurisdiction or risking default (CPLR Sec. 3211, subd [a], pars 8, 9). This is accomplished by means of the limited or special appearance (CPLR Sec. 320, subd. [c] ).

By contrast, in a criminal proceeding commenced by service of an appearance ticket, jurisdiction over a person is acquired only when that person appears himself, or by counsel when permitted, before the court for arraignment. People v Grant, 16 N.Y.2d 722, 723, 262 N.Y.S.2d 106, 209 N.E.2d 723 (1965). The criminal action is commenced only when an accusatory instrument is filed with the court (CPL 1.20, subd. 16; 150.50, subd. 1). Thus, service of an appearance ticket upon a person, whether proper or improper, does not confer personal or subject matter jurisdiction. ¹ In fact, it is merely an invitation to appear; its primary function is notice that an accusatory instrument will be filed against the defendant in court. McClellan v. New York City Transit Authority, 111 Misc.2d 735, 736, 444 N.Y.S.2d 985 (Civ.Ct. of the City of N.Y., Kings County, 1981); People v. Rodriquez, 90 Misc.2d 356, 394 N.Y.S.2d 542 (Village Ct. of Rockville Centre, Nassau County, 1977). See also People v. Scott, 3 N.Y.2d 148, 151, 164 N.Y.S.2d 707, 143 N.E.2d 901; City of Buffalo v. Neubeck, 209 App.Div. 386, 389-390, 204 N.Y.S. 737 (4th Dept, 1924).

Since even the proper service of the appearance ticket upon an individual confers no jurisdiction upon the court, its improper service affords no basis for dismissing a criminal proceeding for lack of jurisdiction. People v. MacFarlene Co., 130 Misc.2d 70, 494 N.Y.S.2d 826 (Crim.Ct., N.Y. County). The individual defendant's failure to respond even to a properly served appearance ticket does not subject him to any adverse action in the case pending against him. Before being subjected to criminal sanctions, he must be personally brought before the court. ²

This motion must be denied on procedural grounds as well. Section 170.30 of the Criminal Procedure Law provides that a motion to dismiss an information may be made only after arraignment. This court apparently has no jurisdiction to entertain such a motion on behalf of a defendant who has not been arraigned (accord, People v. MacFarlene Co., supra ).

Thus, as there is neither a basis to dismiss a criminal action against an individual because of improper service of an appearance ticket nor jurisdiction to entertain such a motion, a "special appearance" by counsel to achieve such a result is unauthorized. In reaching this conclusion the court is not...