People v. Lederle
| Decision Date | 09 August 1954 |
| Citation | 206 Misc. 244 |
| Parties | The People of the State of New York, Plaintiff,<BR>v.<BR>Cecelia Lederle, Defendant. |
| Court | New York Court of Appeals Court of Appeals |
Adrian P. Burke, Corporation Counsel (James J. Hurley and Milton Mollen of counsel), for plaintiff.
Raymond Kiernan O'Brien for defendant.
Sitting as a Court of Special Sessions we are confronted with two problems for determination. They are:
(1) Is the complaint, based as it is, upon information and belief, sufficient to compel the defendant to stand trial? And
(2) Do the conceded facts in this case constitute a substantive violation of law?
The complaint is made by one James Wallace, an inspector of the department of housing and buildings of the City of New York, who upon information and belief alleges that the defendant violated section 643a-9.0 of the Administrative Code of the City of New York in that she knowingly failed and neglected to comply with a lawful order issued by the commissioner of the department of housing and buildings and the borough superintendent of the borough of Queens of the City of New York, predicated upon section 22 of article 5 of the Zoning Resolution of the City of New York (erroneously referred to in the complaint as § 5, art. 22).[*]
The complaint further alleges that said order, a copy of which is attached to and made part of the complaint, was issued by said commissioner and borough superintendent on November 4, 1953, with reference to the use of a trailer stationed by the defendant on its property in a residential use district.
It is further alleged, upon information and belief, that said order was served on the defendant on January 28, 1954, and that the order for the removal of said trailer has not been complied with.
Inspector Wallace then proceeds to allege that the source of his information and the grounds of his belief as to the matters stated in his complaint are certain affidavits and reports made to and filed with his department, true copies of which are annexed to the complaint and made a part thereof.
Inspector Wallace then alleges "on personal knowledge" that the affidavit of service, reports and orders aforesaid were made and thereafter filed in said department as official records or memoranda of the occurrences, conditions and matters therein set forth, and made in the regular course of the business, duties and functions of the persons making the same, and of said department.
It is the defendant's contention that the complaint is insufficient as a matter of law because the substantive allegations setting forth the criminal offense are based entirely upon information and belief and not upon any personal knowledge of the facts by the affiant.
The contention is overruled. A complaint or information charging a misdemeanor serves a dual function: It may be used as the basis for the obtaining of a warrant for the arrest of a defendant and as a pleading, or it may be utilized solely as a pleading in a case in which the defendant has voluntarily appeared in court or in which he has appeared in court after the service of a summons upon him. Where the complaint is used as a predicate for the obtaining of a warrant of arrest, it must set forth facts showing the commission of a designated crime and proper legal proof indicating that the defendant sought to be arrested committed the crime charged. In such a case, allegations upon pure information and belief (in other words, allegations based upon inadmissible hearsay or other incompetent evidence) would be insufficient for the issuance of a warrant, and the court would have no jurisdiction to issue the same. Where, however, the sources of the information and the grounds of the belief are set forth in the complaint or information and are of such a nature that they themselves would be admissible upon a trial without the production for examination and cross-examination of the persons whose information and belief is incorporated in the affiant's affidavit, the complaint or information is sufficient. That is the situation here.
The complaint alleges that the inspections were made by the inspector in the regular course of his duties as an inspector of the department of housing and buildings, and that the result of said inspection showing a violation of law and setting forth the facts thereof was immediately filed in the department, all in accordance with the regular course of business of said inspector and of said department.
Under such circumstances and pursuant to the provisions of section 374-a of the Civil Practice Act, the records thus made would be admissible in evidence without the production in court of the person making the inspection and filing the report. (People v. Kohlmeyer, 284 N.Y. 366.)
The defendant contends, however, that section 374-a of the Civil Practice Act may not be utilized here because section 1 of the Civil Practice Act limits the application of that act to courts of record. Concededly, neither the Magistrates' Court of the City of New York nor that court sitting as a Court of Special Sessions is a court of record. What defendant misapprehends, however, is that section 1 of the Civil Practice Act which limits the application of that act to courts of record means courts of record in civil cases. Its provisions, standing alone, have no application to criminal courts of any kind, and the only reason that section 374-a of the Civil Practice Act is applicable to criminal cases is because section 392 of the Code of Criminal Procedure provides that "rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this code." But the Code of Criminal Procedure does not limit the applicability of section 374-a of the Civil Practice Act in criminal cases to criminal courts of record only; it applies to "criminal cases" generally and without limitation.
In People v. Belcher (302 N.Y. 529, 534), the court held that no further deposition than that of the affiant was called for, since the information in that case was based upon sufficient legal evidence identifying the crime charged and the defendant's probable guilt, and the Court of Appeals refused to be drawn into a discussion as to whether the law of this State requires that when used solely as a pleading, as distinguished from being used on an application for a warrant, a complaint or information must be sworn to by a person competent to testify to the facts recited.
Said Judge FULD in that case: the objection to the information...
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Department of Housing Preservation and Development of City of New York v. Gottlieb
...of inspection reports which are admissible under CPLR 4518(c) "and are prima facie evidence of the facts contained". (People v. Lederle, 206 Misc. 244, 132 N.Y.S.2d 693, affd. 285 A.D. 974, 139 N.Y.S.2d 915 [2nd Dept.1955], affd. 309 N.Y. 866, 131 N.E.2d 284; Milchman v. Rivera, 39 Misc.2d ......
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