People v. Jarmain

CourtNew York City Court
Writing for the CourtBENJAMIN E. LANDER
Citation93 Misc.2d 950,403 N.Y.S.2d 886
Decision Date04 April 1978
PartiesThe PEOPLE of the State of New York v. Robert A. JARMAIN, Defendant.

Page 886

403 N.Y.S.2d 886
93 Misc.2d 950
The PEOPLE of the State of New York
v.
Robert A. JARMAIN, Defendant.
Criminal Court of the City of New York, New York County.
April 4, 1978.

Allen G. Schwartz, Corp. Counsel, New York City, for the People; Ira L. Blankstein, Asst. Corp. Counsel, New York City, of counsel.

Howard S. Davis, New York City, for defendant.

BENJAMIN E. LANDER, Judge:

The defendant herein is a chiropractor allegedly in charge of the operation of a radiation installation at his office at 385 Knickerbocker Avenue in the Borough of Brooklyn, City and State of New York. On October 19, 1977, as a result of an inspection of such facilities, an instrument entitled "SUMMONS" was served upon him wherein certain violations of the Health Code were cited.

At this point in the proceedings he makes application, through his attorney, to dismiss the proceedings, contending

(1) that the sections cited as being allegedly violated were incorrect and even nonexistent;

(2) that the alleged "SUMMON was issued for the wrong address; and

(3) that the radiation equipment involved is not owned by this defendant so as to preclude any responsibility for its improper use and operation.

In response, the Corporation Counsel contends that irrespective of its designation, the process served was, in fact, an Appearance Ticket (CPL 150.10) both curable and amendable by the filing of a proper Information fully apprising "the defendant of the nature of the charges against him (so as to) enable him to prepare for trial," citing People v. Zambounis, 251 N.Y. 94, 167 N.E. 183 (1929).

An analysis of the pertinent sections of the Criminal Procedure Law relative to the summons (Article 130) reveals that

"A summons is a process issued by a local criminal court directing a defendant . . . to appear before it at a designated future time (whose) sole function . . . is

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to achieve a defendant's court appearance . . . for the purpose of arraignment upon the accusatory instrument . . ." (CPL Sec. 130.10(1))

Since process in this case was neither issued by a court nor predicated upon a complaint or an Information, it obviously does not comply with this definition.

On the other hand,

"An appearance ticket is a written notice issued and subscribed by a . . . public servant . . . directing a designated person to appear in a . . . local criminal court at a . . . future time in connection with his alleged commission of a designated offense" (CPL Sec 150.10)

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3 practice notes
  • Rosario v. Amalgamated Ladies' Garment Cutters' Union, Local 10, I.L.G.W.U., AFL-CI
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 17, 1979
    ...complaint. Id. An Appearance Ticket does not "constitute an accusatory instrument for purposes of trial or plea." People v. Jarmain, 93 Misc.2d 950, 951, 403 N.Y.S.2d 886, 887 (Crim.Ct.N.Y.1978); People v. Rodriguez, 90 Misc.2d 356, 394 N.Y.S.2d 542 (Village Ct. of Rockville Centre 1977). N......
  • People v. Consolidated Edison Co.
    • United States
    • New York City Court
    • July 11, 1994
    ...542 (Village Ct. Nassau Co.1977), and held not to "constitute an accusatory instrument for purposes of trial or plea." People v. Jarmain, 93 Misc.2d 950, 951, 403 N.Y.S.2d 886 Absent the filing of a proper accusatory instrument after the issuance of an appearance ticket, the court cannot ac......
  • People v. Wienclaw
    • United States
    • New York Justice Court
    • February 8, 2000
    ...for law enforcement to misname legal process, such as referring to an appearance ticket erroneously "as a summons." (People v Jarmain, 93 Misc 2d 950 [Crim Ct, NY County 1978].) However, in the case at bar the accusatory instrument is referred to as a "violation information" and not as an a......
3 cases
  • Rosario v. Amalgamated Ladies' Garment Cutters' Union, Local 10, I.L.G.W.U., AFL-CI
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 17, 1979
    ...complaint. Id. An Appearance Ticket does not "constitute an accusatory instrument for purposes of trial or plea." People v. Jarmain, 93 Misc.2d 950, 951, 403 N.Y.S.2d 886, 887 (Crim.Ct.N.Y.1978); People v. Rodriguez, 90 Misc.2d 356, 394 N.Y.S.2d 542 (Village Ct. of Rockville Centre 1977). N......
  • People v. Consolidated Edison Co.
    • United States
    • New York City Court
    • July 11, 1994
    ...542 (Village Ct. Nassau Co.1977), and held not to "constitute an accusatory instrument for purposes of trial or plea." People v. Jarmain, 93 Misc.2d 950, 951, 403 N.Y.S.2d 886 Absent the filing of a proper accusatory instrument after the issuance of an appearance ticket, the court cannot ac......
  • People v. Wienclaw
    • United States
    • New York Justice Court
    • February 8, 2000
    ...for law enforcement to misname legal process, such as referring to an appearance ticket erroneously "as a summons." (People v Jarmain, 93 Misc 2d 950 [Crim Ct, NY County 1978].) However, in the case at bar the accusatory instrument is referred to as a "violation information" and not as an a......

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