People v. Horner

• Decision Date: 14 January 1998
• Citation: 176 Misc.2d 93,673 N.Y.S.2d 811
• Parties: , 1998 N.Y. Slip Op. 98,261 The PEOPLE of the State of New York, Respondent, v. Terry D. HORNER, Appellant.
• Court: New York Supreme Court — Appellate Term

Page 811

673 N.Y.S.2d 811

176 Misc.2d 93, 1998 N.Y. Slip Op. 98,261

The PEOPLE of the State of New York, Respondent, v. Terry D. HORNER, Appellant.

Supreme Court, Appellate Term,

Second Department.

Jan. 14, 1998.

Finkelstein, Levine, Gittelsohn & Tetenbaum, Newburgh (Terry D. Horner, of counsel), for appellant.

Before DiPAOLA, P.J., COLLINS, J.P., and INGRASSIA, J.

MEMORANDUM.

Judgment of conviction unanimously reversed on the law and facts, and summons dismissed. Fine, if paid, is remitted.

Defendant was charged with a standing parking violation in an instrument denominated, "Summons, Parking Ticket and Complaint." As this court recently held in People of the State of New York, Village of Great Neck Estates v. Gabbay (NYLJ,----, [9th & 10th Jud.Dists.] ):

"The parking violation[ ] summons[ ] issued to defendant are the functional equivalent of appearance tickets issued in accordance with CPL 150.10 and 150.20 (see, People v. Cooperman and O'Dell, NYLJ, January 17, 1989, App. Term [9th & 10th Jud. Dists.]; Matter of Reynolds v. New York State Department of Motor Vehicles, 52 A.D.2d 1048, 384 N.Y.S.2d 567). It is well settled that an appearance ticket is not an accusatory instrument and its filing does not confer jurisdiction over defendant (see, People v. Cooperman and O'Dell, supra; People v. Gregory, NYLJ December 5, 1991, App. Term [9th & 10th Jud. Dists.] ). There is no indication upon this record that the People ever filed the proper accusatory instrument[ ] with the court (see, CPL 150.50). Accordingly, dismissal of the summons[ ] is mandated since the court never acquired jurisdiction (see, People v. Alberi, NYLJ, February 7, 1990 App. Term [9th & 10th Jud. Dists.]; People v. Martin, NYLJ, April 16, 1993 App. Term [9th & 10th Jud. Dists.]; People v. Cooperman and O'Dell, supra )."

Moreover, even if the ticket at issue were to be deemed a misdemeanor complaint there is no indication that defendant waived prosecution by information (see, CPL 170.10[4][d] ). In view of our determination, it is not necessary to address defendant's remaining contentions.