People v. Haverty

• Decision Date: 12 August 1959
• Citation: 21 Misc.2d 198,191 N.Y.S.2d 34
• Parties: PEOPLE of the State of New York, Plaintiff, v. Charles J. HAVERTY, Defendant.
• Court: New York County Court

Page 34

191 N.Y.S.2d 34

21 Misc.2d 198

PEOPLE of the State of New York, Plaintiff, v. Charles J. HAVERTY, Defendant.

Suffolk County Court.

Aug. 12, 1959.

John P. Cohalan, Jr., Dist. Atty. of Suffolk County, Riverhead, for the People.

Pearsall, Lauder & Wheller, Amityville, for defendant.

HENRY TASKER, Judge.

Defendant appeals from a judgment of the Police Justice Court, Incorporated Village of Amityville, entered upon the verdict of a jury, adjudging him guilty of Malicious Mischief (Penal Law, § 1433, subd. 2).

An information was laid before the Police Justice charging defendant with injuring a cat boat belonging to the complaining witness, by striking said boat with an iron bar, driving a hole in the planking. Concurrently, two affidavits made by complainant's wife and a neighbor were submitted to the Magistrate. Only one of such affidavits contains direct information relating to the alleged occurrence.

A protracted trial before the Police Justice and a jury resulted in the verdict and judgment of guilt here under review.

The defendant was accorded a fair and complete trial before the learned and capable Police Justice, with the exception hereinafter noted, and the verdict of the jury was fully justified by the evidence.

Two of appellant's assignments of error require attention. His principal argument upon this appeal relates to an alleged jurisdictional deficiency in the information. During the course of cross-examination of the informant and complaining witness, it appeared that he was not present when the criminal acts charged occurred, and could not have had any personal knowledge of the facts alleged in the information. Defendant's motion to dismiss was then made, and denied by the Court on the authority of People v. Belcher, 302 N.Y. 529, 99 N.E.2d 874.

In so ruling, the learned Police Justice fell into error.

The information herein was made by Richard W. Gillen, the complaining witness, on knowledge. No depositions or other supporting documents were attached or referred to therein. Indeed, they were wholly unnecessary, since the allegations of fact were apparently made on Gillen's own knowledge. Defendant was thereafter arrested upon a warrant, duly arraigned and held for trial.

Without question, the complaining witness had no knowledge of the events stated in the information. They were hearsay as to Gillen who admittedly was not present at the time in question, and, of course, was wholly incompetent to testify to the facts to which he had sworn. Although it is quite probable that this misrepresentation of knowledge was inadvertent, and the information was in fact based on information and belief, the source being the affidavit of the witness Schurig, the information does not so state; nor does it refer to any deposition nor were the depositions in fact attached. With an eye to formalizing the initiation of criminal proceedings, the Court of Appeals has, in a series of recent cases, laid down guides for Court of Special Sessions outside the City of New York (Code of Criminal Procedure, §§ 145 through 150).

It is well settled that any criminal information must be in writing and must be verified before an appropriate officer, People v. Jacoby, 304 N.Y. 33, 105 N.E.2d 613; People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d 707; People v. Halling, 203 Misc. 428, 122 N.Y.S.2d 543. The information must in itself, or if made on information and belief in the depositions attached, state facts constituting the crime charged, to which facts the informant or the deponents can testify. People v. Belcher, 302 N.Y. 529, 99 N.E.2d 874; People v. Sorg, 3 Misc.2d 437, 149 N.Y.S.2d 387; People v. Orzechowski, 4 Misc.2d 484, 158 N.Y.S.2d 884.

Where the information is the basis for a warrant of arrest, and is not in fact made on the informant's own knowledge, the source of the information and the grounds of brlief must be set forth, and the depositions attached to the pleading. People v. Bertram, 302 N.Y. 526, 99 N.E.2d 873; People v. Belcher, supra; People v. Mezzatesta, 203 Misc. 253, 115 N.Y.S.2d 498.

Subsequent to the trial herein, the Court of Appeals extended these requirements in People v. James, 4 N.Y.2d 482, 176 N.Y.S.2d 323. It was there held that all informations must be made by someone having competent knowledge of the facts stated or, if made on information and belief, the supporting depositions must be referred to in the information, and must be attached thereto....