People v. Consolidated Edison Co. of New York, Inc.

• Citation: 582 N.Y.S.2d 614,153 Misc.2d 595
• Parties: The PEOPLE of the State of New York, Plaintiff, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant.
• Decision Date: 17 April 1992
• Court: New York City Court

Page 614

582 N.Y.S.2d 614

153 Misc.2d 595

The PEOPLE of the State of New York, Plaintiff, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant.

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

April 17, 1992.

O. Peter Sherwood, Corp. Counsel by Marilyne Mason, Asst. Corp. Counsel, New York City, for the People.

Richard W. Babinecz, New York City, for defendant.

HAROLD ADLER, Judge:

Defendant stands charged with numerous misdemeanors and violations of the New York City Administrative Code and moves this court for dismissal.

The facts are not in dispute. For each charge, an appearance ticket was issued by the New York City Department of Transportation listing November 8, 1991, as the "date of appearance". On that date counsel for defendant appeared in the Summons Appearance Part (SAP) as instructed by the appearance tickets, only to learn that these matters were not on the court calendar. Defendant's attorney later received a letter from the Department of Transportation dated November 21, 1991, notifying him that these matters were rescheduled to December 6, 1991. On December 6, 1991, a motion schedule was set on the issue of whether the People's ex parte rescheduling of these matters renders them jurisdictionally defective. This court now addresses this issue.

In its Affidavit in support of its motion to dismiss, defendant contends that the People violated Criminal Procedure Law Section 150.50 by failing to file an accusatory instrument on or before November 8, 1991. CPL Section 150.50 states, in relevant part:

1. A police officer or other public servant who has issued and served an appearance ticket must, at or before the time such appearance ticket is returnable, file or cause to be filed with the local criminal court in which it is returnable a local criminal court accusatory instrument charging the person named in such appearance ticket with the offense specified therein.

The People failed to satisfy CPL 150.50 in that they did not file a simplified information or misdemeanor complaint "at or before the time such appearance ticket is returnable". Defendant contends that the People's violation of CPL 150.50 should result in dismissal of these proceedings. Defendant contends that the court in People v. Rodriguez, 90 Misc.2d 356, 394 N.Y.S.2d 542 (Village Ct. of Rockville Center, Town of Hempstead, Nassau County, 1977) "dismissed a proceeding for the failure of the People to file timely appearance ticket". However, the court in Rodriguez, merely addressed the issue of whether defendant could be arraigned on an appearance ticket. In the case before this court, defendant contends that the People's rescheduling of the date of appearance should result in dismissal for lack of jurisdiction. Rodriguez does not address this issue and therefore is not persuasive.

JURISDICTION OVER THE PERSON

In order for a court to render judgment in a criminal case, it need obtain jurisdiction over both the subject matter and over the person. Matter of Lurie v. District Attorney of Kings County, 56 Misc.2d 68, 69, 288 N.Y.S.2d 256 (Sup.Ct., Kings County, 1968). Jurisdiction over the subject matter is derived from statute; it can never be acquired by waiver or consent. Jurisdiction over the person, however, may be obtained by a valid arrest or appearance ticket or by waiver or consent. In People v. Sessa, 43 Misc.2d 24, 26 (Crim.Ct., N.Y.County, 1964), the court held that "[t]here is also ample authority for the conclusion that where the court has jurisdiction of the offense, the manner or means by which the defendant is brought before the court is immaterial and of little importance." That case further held that as long as defendant appeared before the court in which the matter is properly pending, the court has its jurisdictional basis. This Sessa rule is still valid today. In personam jurisdiction is acquired by the appearance of the defendant in court. People v. Byfield, 131 Misc.2d 884, 502 N.Y.S.2d 346 (Crim.Ct., N.Y.County, 1986).

Defects in the contents, service or issuance of an appearance ticket (which is considered only an invitation to appear) cannot be a jurisdictional impediment to prosecution and affords no basis for dismissing a criminal proceeding for lack of jurisdiction. People v. Byfield, supra; People v. MacFarlene Co., 130 Misc.2d 70, 494 N.Y.S.2d 826 (Crim.Ct., N.Y.County, 1985).

In the case before this court, the "date of appearance" written on the appearance tickets turned out to be defective. But in a criminal proceeding, jurisdiction over the person is acquired by the filing of an information and an appearance by defendant. People v. Grant, 16 N.Y.2d 722, 723, 262 N.Y.S.2d 106, 209 N.E.2d 723 (1965). The defects in the appearance tickets are therefore immaterial as defendant has appeared before this court. Accordingly, this court has jurisdiction in these matters.

CONSEQUENCE OF FAILURE TO COMPLY WITH CPL 150.50(1)

The People's failure to comply with CPL 150.50(1) does not necessitate dismissal of the information. In People v. Coore, 149 Misc.2d 864, 566 N.Y.S.2d 992 (Crim.Ct., City of Yonkers, 1991) the People failed to comply with CPL 150.50(1) when they failed to file the appropriate accusatory instrument "with the local criminal court in which it [the appearance ticket] is returnable". In that case the appearance ticket instructed defendant to appear in Mt. Vernon City Court and defendant appeared there twice before learning that his case had, in fact, been commenced in the Yonkers City Court. Defendant moved to dismiss on grounds that the People violated CPL 150.50(1). The court in Coore held that if Yonkers has geographical jurisdiction, the "filing of said charges in Yonkers was proper" despite the People's failure to comply with CPL 150.50(1). ( Coore, supra, at 866). The court stated that "the fact that the appearance ticket directed defendant to appear in the City Court of Mt. Vernon is not a jurisdictional defect warranting dismissal of the charges" (Coore, supra, at 866, 566 N.Y.S.2d 992).

The nature and function of the appearance ticket is further reflected in People v. Dillin, 148 Misc.2d 311, 560 N.Y.S.2d 940 (N.Y.City Crim.Ct.1990). In that case the People filed an accusatory instrument charging offenses not specified in the appearance ticket. This violates CPL 150.50(1) which requires, in part, that where a desk appearance ticket is issued, a local court accusatory instrument must be filed "charging the person named in such appearance ticket with the offense specified therein." The court...