People v. Coldiron

• Decision Date: 08 February 1974
• Citation: 355 N.Y.S.2d 518,77 Misc.2d 102
• Parties: The PEOPLE of the State of New York, Complainant, v. Nancy COLDIRON, Defendant.
• Court: New York Court of Special Sessions

Page 518

355 N.Y.S.2d 518

77 Misc.2d 102

The PEOPLE of the State of New York, Complainant, v. Nancy COLDIRON, Defendant.

Yonkers Court of Special Sessions.

Feb. 8, 1974.

Carl A. Vergari, Dist. Atty., by Thomas Pronte, Asst. Dist. Atty., White Plains, for the People.

E. George Nyberg, Yonkers, for defendant.

ROBERT W. CACACE, City Judge.

The Defendant herein is charged with operating a motor vehicle while in an intoxicated condition in violation of Section 1192, Subdivision 3 of the Vehicle and Traffic Law.

Trial was had in this Court before a jury on December 11, 1973. At the close of the People's case the Defendant moved to dismiss the complaint on the ground that the information charging the offense was defective in that the subdivision and the title of the law alleged to have been violated were not set forth in the information, and that the information was jurisdictionally defective in that it was not properly verified by the Complainant. For purposes of clarity, a copy of the information is set forth herein.

In regard to the first prong of Defendant's motion, it is the opinion of the Court that the defects in the information are not substantial and the lack of nomenclature can be cured by amendment (People v. Dioquardo, 303 N.Y. 514, 104 N.E.2d 881; People v. Easton, 307 N.Y. 336, 339, 121 N.E.2d 357; People v. Thomson, 62 Misc.2d 838, 839, 310 N.Y.S.2d 1). The Defendant is adequately apprised of the charge against her and is sufficiently protected from the hazard of double jeopardy by the specifics set forth in the information (People v. Zambounis, 251 N.Y. 94, 167 N.E. 183; People v. Schultz, 301 N.Y. 495, 95 N.E.2d 815).

In regard to the second prong of Defendant's motion, however, the Court feels the Defendant is on firmer ground.

The statute setting forth the necessary prerequisites for the proper verification of accusatory instruments is Section 100.30 of the Criminal Procedure Law, which reads as follows:

'1. An information, a misdemeanor complaint, a felony complaint and a supporting deposition may be verified in any of the following manners:

(a) * * *

(b) * * *

(c) * * *

(d) Such instrument may bear a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument.'

The information charging the crime herein contains the statement required by Section 210.45 of the Penal Law which statement, under Section 100.30, Subdivision 1(d) of the Criminal Procedure Law, is an authorized form of verification. The statement, however, is not followed by the signature of the Complainant.

The question which must be decided is whether or not the insertion of the proper words on the face of an accusatory instrument, even though the signature of the Complainant does not follow the words and, in fact, precedes them, is a sufficient compliance with Section 100.30 of the Criminal Procedure Law.

It is the contention of the People that the information herein is in compliance in that the Complainant signed the information at the bottom, and that the placement of the required notice is irrelevant as long as it appears some place on the accusatory instrument. The Court is unable to agree.

The necessity for a sworn complaint as a prerequisite to the commencement of a criminal prosecution has long been established in this State (People ex rel. Siegal v. Dros, 11 N.Y.2d 167, 227 N.Y.S.2d 431, 182 N.E.2d 106; People v. Polle, 9 N.Y.2d 349, 214 N.Y.S.2d 369, 174 N.E.2d 474). It is irrelevant whether the information be used as a basis for an arrest or merely as a pleading document (People v. James, 4 N.Y.2d 482, 176 N.Y.S.2d 323, 151 N.E.2d 877).

The requirement that an information be sworn to is jurisdictional in nature and, as such, cannot be waived by a defendant, even by a guilty plea (Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505; Weeks v. United States, 132 C.C.A. 436, 216 F. 292; People ex rel. Battista v. Christian, 249 N.Y. 314, 164 N.E. 111).

It is readily apparent that if the form used in the present case was insufficient to comply with the statute, the charge must be dismissed. In essence, what must be done is to interpret the statute, i.e., Section 100.30 of the Criminal Procedure Law and the intent of the Legislature in its enactment.

The statute says, in part, 'such form notice together with the subscription of the dependent constitute a verification of the instrument.' The intent to have the notice affirmed by a signature placed underneath the words is mandated by the statutory language itself. If there had been commas after the words 'notice' and 'deponent' so that the phrase 'together with the subscription of the deponent' would not be tied directly into and become a further explanation of the subject, that is 'such form notice,' it might be argued that the phrase is only a further description of the subject. However, given the lack of punctuation in the paragraph, the phrasing 'together with the subscription of the deponent' can only refer to the form notice.

In addition to the grammatical mandate, there is the persuasive argument of legal precedent. While the Court has found no case similar to the instant matter, there have been numerous determinations in the civil law, primarily in cases dealing with wills and the Statute of Frauds, which indicate that the word 'subscription' means a signature placed at the bottom or end of the contents of the document (Re Marques, Sur., 123 N.Y.S.2d 877; Re Winters, 277 App.Div. 24, 98 N.Y.S.2d 312, aff'd 302 N.Y. 666, 98 N.E.2d 477; Steinberg v. Universal Machinenfabrik GMBH, 24 A.D.2d 886, 264 N.Y.S.2d 757, aff'd 18 N.Y.2d 943, 277 N.Y.S.2d 142, 223 N.E.2d 567).

In the case of James v. Patten, 6 N.Y. 9, the Court of Appeals in interpreting the then 'Statute of Frauds' held that a signature placed elsewhere on the instrument, but not at the bottom thereof, would not be binding. At page 13 of that decision, the word 'subscribe' was defined as follows: 'the word 'subscribe,' in its habitual use, and according to both its popular and literary signification, is limited to a signature at the end of a printed or written instrument.'

In ascribing a motive to the legislative terminology, one text has set forth their opinion that 'subscribed' means signing at the end of a document in the following language: 'Presumably, the underlying purpose of the legislature in requiring that a memorandum be 'subscribed' is the same as that in the case of wills, which must be subscribed by a signature at the end of the document, namely, to prevent fraud through insertion or additions to a writing subsequent to its execution' (56 New York Jurisprudence, Statute of Frauds, Section 220).

In the interpretation of Section 2106 of the Civil Practice Laws and Rules, a similar liberalization of the form of verification enabling an attorney at law to affirm, rather than take a formal oath, the Courts have taken a firm position that the formal requirements be complied with by disallowing the use of a rubber stamp for a signature (Sandy Mark Realty Corp. v. Creswell, 67 Misc.2d 630, 324 N.Y.S.2d 504); and in not allowing 'the mere typing' of the attorney's name to suffice the dictates of the statute (Macri v. St. Agnes Cemetery, 44 Misc.2d 702, 255 N.Y.S.2d 278).

In at least one test book designed to aid and guide lawyers and others in the proper procedure to insure that an accusatory instrument is legal in all respects, the form given is that of an acknowledgement of the penalties of Section 210.45 of the Penal Law with a place for the signature of the complainant under the acknowledgement so as to be, in effect, in affirmance of the penalties which might be incurred for false swearing (1 Waxner, New York Criminal Practice, Appendix B, Form 2:1).

The enactment of Section 100.30 of the Criminal Procedure Law was a liberalization and expansion of the mode of verifying an accusatory instrument (see Practice Commentary, McKinney's Criminal Procedure Law, Section 100.30). It in no way was intended to allow the use of an unsworn accusation in a criminal case. Each method of verification must be adhered to in all aspects, and where there is a break in the chain of the required formality, an accusatory instrument falls, even if on its...