People v. Coldiron

CourtNew York Court of Special Sessions
Writing for the CourtI
Citation355 N.Y.S.2d 518,77 Misc.2d 102
Decision Date08 February 1974
PartiesThe PEOPLE of the State of New York, Complainant, v. Nancy COLDIRON, Defendant.

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.

[77 Misc.2d 103]

Page 519

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.

Page 520

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) * * *

[77 Misc.2d 104] (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

Page 521

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 [77 Misc.2d 105] the subscription of the deponent' would not be tied directly...

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3 practice notes
  • Security Pacific Nat. Trust Co. v. Cuevas
    • United States
    • New York City Court
    • 5 Mayo 1998
    ...877, Re Winters, 277 App.Div. 24, 98 N.Y.S.2d 312, aff'd 302 N.Y. 666, 98 N.E.2d 477) and criminal prosecutions (People v. Coldiron, 77 Misc.2d 102, 355 N.Y.S.2d 518 (1974)). In Coldiron, the court states "the word 'subscribe' in its habitual use, and according to both popular and lite......
  • People v. Sossa
    • United States
    • New York City Court
    • 4 Marzo 1974
    ...there is no indication that the action or offense will ever be handled by a superior court--' the motion is made in the local criminal [77 Misc.2d 102] court. No indication of potential handling by a superior court is found in this proceeding against Hugo Careful scrutiny fails to reveal an......
  • People v. Reid
    • United States
    • New York Justice Court
    • 21 Junio 1999
    ...inconsistent statement. The filing of a false statement may be punishable as a misdemeanor. (See, Penal Law § 210.45; People v Coldiron, 77 Misc 2d 102 [1974].) Most of the accused who appear in this court do so pro se. Instead of leaving it to chance or giving them just to those who [181 ......
3 cases
  • Security Pacific Nat. Trust Co. v. Cuevas
    • United States
    • New York City Court
    • 5 Mayo 1998
    ...877, Re Winters, 277 App.Div. 24, 98 N.Y.S.2d 312, aff'd 302 N.Y. 666, 98 N.E.2d 477) and criminal prosecutions (People v. Coldiron, 77 Misc.2d 102, 355 N.Y.S.2d 518 (1974)). In Coldiron, the court states "the word 'subscribe' in its habitual use, and according to both popular and lite......
  • People v. Sossa
    • United States
    • New York City Court
    • 4 Marzo 1974
    ...there is no indication that the action or offense will ever be handled by a superior court--' the motion is made in the local criminal [77 Misc.2d 102] court. No indication of potential handling by a superior court is found in this proceeding against Hugo Careful scrutiny fails to reveal an......
  • People v. Reid
    • United States
    • New York Justice Court
    • 21 Junio 1999
    ...inconsistent statement. The filing of a false statement may be punishable as a misdemeanor. (See, Penal Law § 210.45; People v Coldiron, 77 Misc 2d 102 [1974].) Most of the accused who appear in this court do so pro se. Instead of leaving it to chance or giving them just to those who [181 ......

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