People v. James

• Decision Date: 25 June 1958
• Citation: 4 N.Y.2d 482,176 N.Y.S.2d 323,151 N.E.2d 877
• Parties: , 151 N.E.2d 877 The PEOPLE of the State of New York, Respondent, v. Beatrice JAMES, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 323

176 N.Y.S.2d 323

4 N.Y.2d 482, 151 N.E.2d 877

The PEOPLE of the State of New York, Respondent, v. Beatrice JAMES, Appellant.

Court of Appeals of New York.

June 25, 1958.

Frank A. Jablonka, Riverhead (Lawrence Newmark, East Northport, of counsel), for appellant.

John P. Cohalan, Jr., Dist. Atty., Riverhead (Harold Ashare, Patchogue, of counsel), for respondent.

FROESSEL, Judge.

Defendant was charged with violation of subdivision 1 of section 100 of the Alcoholic Beverage Control Law, McK.Consol.Laws, c. 3-B (unlicensed sale of alcoholic beverages). After reversal of her conviction upon an alleged plea of guilty on the grounds hereinafter stated, the case went to trial. Before presentation of any evidence, defendant moved for a dismissal of the information on the ground that it was legally insufficient because based on information and belief without a statement of the sources of the information. The information itself, after the statement charging the crime, reads as follows:

'This information is based on information and belief and on the oral statement of witnesses.

'Wherefore your informant prays that the deposition of informant and , witness, may be reduced to writing and duly subscribed, and that a warrant issue for the arrest of said accused, and that he be dealt with pursuant to the provisions of the Code of Criminal Procedure.'

Immediately after denial of the motion, the District Attorney submitted two written statements upon which the oral statements referred to in the information were said to have been based. The signers of these statements, two paid informants of the District Attorney, thereupon testified at the trial.

Upon this appeal defendant, among several grounds for reversal, urges that since the information is founded on information and belief, without statement of the sources thereof, it was legally insufficient even though used solely as a pleading and not as a basis for issuance of a warrant. The form of the information indicated that it was intended to serve as a basis for the issuance of a warrant but, as defendant submitted to an illegal arrest, no warrant was required.

This objection was not waived by defendant when she first pleaded guilty under conditions which the County Court said 'do not indicate that the defendant acted freely, understandingly, competently and intelligently'. After the County Court reversed that conviction, and when defendant obtained counsel, she moved on this trial to dismiss the information promptly. Thus cases stating that a guilty plea waives the defect in the information are not here apt (People v. Fosella, 304 N.Y. 667, 107 N.E.2d 591; People v. Brous, 296 N.Y. 1028, 73 N.E.2d 905; People v. Scott, 3 N.Y.2d 148, 152, 164 N.Y.S.2d 707, 710; People v. Belcher, 302 N.Y. 529, 534, 99 N.E.2d 874, 876).

Neither has the submission of the two statements of the prosecution witnesses any relevance here. According to the trial minutes, these statements were submitted to the court by the District Attorney for the first time, and without moving for an amendment of the information, after the Trial Judge had denied defendant's motion to dismiss the information, and after defendant had excepted to that ruling. Although the District Attorney stated that the written statements were the basis of the oral statements referred to in the information (no written statements were referred to therein), an examination of the information and the statements does not show this to be the fact. Though sworn to on the same day, they were verified before different notaries public, and the information and statements in nowise refer to one another. Thus we do not feel that these statements cured the failure of the information to state the sources of information and belief: the information merely alleged plain hearsay from unidentified 'witnesses'.

We are here squarely presented with the question whether as a matter of policy we should hold that informations, when used solely as a pleading, should be sworn to by a person competent to testify as to the facts recited therein a question we indicated to be 'open' in People v. Belcher, supra or whether the information should be supported by depositions by such persons, or that at least the identifiable sources of such information and the grounds of such belief be stated.

It is well-settled law that where an information is used as the basis for the issuance of a warrant of arrest or subpoenas, it is insufficient if it rests on information and belief without a statement of the sources of the information and grounds of the belief. Among the cases in our court taking this view are: People v. Lederle, 309 N.Y. 866, 131 N.E.2d 284; People v. O'Neil, 303 N.Y. 747, 103 N.E.2d 538; People v. Bertram, 302 N.Y. 526, 99 N.E.2d 873; People v. Belcher, supra; People ex rel. Perkins v. Moss, 187 N.Y. 410, 80 N.E. 383, 11 L.R.A.,N.S., 528; People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 79 N.E. 330, 10 L.R.A.,N.S., 159. The reasons for this rule are said to be that a reasonable guarantee of probable cause is required before interference with a person's liberty, ensuing from the issuance of a warrant, is justified (People ex rel. Livingston v. Wyatt, supra, 186 N.Y. at page 392, 79 N.E. at page 333; see Matter of Blum, 9 Misc. 571, 30 N.Y.S. 396; see, also, U.S.Const. 4th Amend., and Civil Rights Law, McK.Consol.Laws, c. 6, § 8), and that such probable cause is not shown where the information is based solely on information and belief without a statement of the sources thereof and the grounds of belief.

In People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d 707, handed down after the County Court had decided the instant case, we dealt with a problem closely analogous to that presented here. There we were faced with the question of whether the same reasons of policy which required an information to be verified when used as the basis for the issuance of a warrant should be applicable when the information was used as a pleading. We stated that they were. In our opinion the same considerations which led us to that conclusion in the Scott case should lead us to hold this information insufficient.

If defendant is entitled to be protected against groundless criminal proceedings by assurance that the informant has reasonable grounds for his belief that defendant has committed a crime, and if it is believed that such protection is assured by requiring the information to contain 'legal evidence' of the commission of a crime (see People v. Belcher, 302 N.Y. 529, 534-535, 99 N.E.2d 874, 876-877, supra; People v. Sorg, 3 Misc.2d 437, 149 N.Y.S.2d 387), such protection should be afforded whether the prosecution in instituted by a warrant of arrest, an illegal arrest to which defendant consents, or even a voluntary appearance on the part of defendant.

In this sense, the information, whether used as the basis for issuance of a warrant or subpoenas, or only as a pleading, has a function in addition to informing defendant of the charge against him and barring subsequent prosecution for the same offense. It exposed this defendant to the necessity of procuring bail in default of which she would be imprisoned as indeed almost happened in this case. It is also the formal charge against defendant the paper which institutes the...