People v. MacFarlene Co.

• Decision Date: 23 October 1985
• Citation: 130 Misc.2d 70,494 N.Y.S.2d 826
• Parties: PEOPLE of the State of New York, v. MacFARLENE COMPANY, Defendant, and Robert McFarlan, Defendant, and Robert McFarlane, Defendant.
• Court: New York City Court

Page 826

494 N.Y.S.2d 826

130 Misc.2d 70

PEOPLE of the State of New York, v. MacFARLENE COMPANY, Defendant and Robert McFarlan, Defendant and Robert McFarlane, Defendant.

Criminal Court of the City of New York New York County, Part Sap 1.

Oct. 23, 1985.

Frederick A.O. Schwarz, Jr. (of counsel Gabriel Taussig, Charles R. Foy, Marilyne Mason), New York City, for the People.

Jarblum, Solomon & Fornari, P.C., New York City, for defendants.

DECISION

LEONA FREEDMAN, Judge.

On June 4, 1985 a criminal summons was issued to MacFarlene Co. for the defendant's failure to "renew hoistway doors" and to "provide interlocks" (alleged violations of Secs. 26-105.1 and 105.2, and R.S. 18.1 of the New York City Administrative Code). On June 6, 1985 two criminal summonses were issued to Robert McFarlan(e) for "no permits" (alleged violations of Secs. C26-114.1 of the New York City Administrative Code). All summonses were "served" by personal delivery to Sean Heverin, whose relationship to the subject premises is not entirely clear.

All three cases have appeared on the Summons Part calendar on a number of occasions. It appears from the court file that at no time have the defendants personally appeared before this court. This was confirmed by an oral representation made by defendants' counsel. The minutes for the first court date for the MacFarlene Co. case show that Corporati Counsel requested an adjournment for the defendant. The minutes for the first court date for the McFarlan(e) cases indicate that private counsel, Jarblum, Solomon & Fornari, P.C., appeared on defendant's behalf. Also of note is that at no time were defendants arraigned nor did they enter pleas.

ISSUES

Defendants move to dismiss the information herein based upon two grounds:

1) Lack of jurisdiction because of improper service, and;

2) Improper parties.

LAW

1) Defendants contend that service of the criminal summonses herein was defective. However, service of a criminal summons-properly or improperly-does not give a court jurisdiction over a particular case. People v. Levins, 152 Misc. 650, 273 N.Y.S. 941 (Ct. of Spec.Sess, App. Pt. 1, 1934); People v. Consolidated Edison Co., 42 Misc.2d 422, 248 N.Y.S.2d 267 (City Ct. New Rochelle, 1964).

In order for a court to give judgment in a criminal case, it need only obtain jurisdiction over the subject matter and over the person. Matter of Ellen Lurie et al v. District Attorney Kings County, 56 Misc.2d 68, 288 N.Y.S.2d 256 (Sup.Ct., Kings Co.1968). Therefore, the issue before this court is not whether the service of the summonses was invalid--as alleged by defendants--but whether the court had jurisdiction over the subject matter and the person of the defendants. As it was stated by Judge William Ringel in the case of People v. Sessa, 43 Misc.2d 24, 250 N.Y.S.2d 193 (Crim.Ct., N.Y.Co., 1964):

"There is ample authority for the conclusion that where the court has jurisdiction of the offense, the manner or means by which defendant is brought before the court is immaterial and of little importance." People v. Sessa, id, p. 26, 250 N.Y.S.2d 193; See also, People v. Haber, 20 Misc.2d 272, 191 N.Y.S.2d 497 (Ct. of Spec.Sess., App. Pt. 2, 1959).

A criminal court obtains jurisdiction over the offense charged by the filing of an information and complaint. People v. Grant, 16 N.Y.2d 722, 262 N.Y.S.2d 106, 209 N.E.2d 723 (1965); People v. Rodman, 65 Misc.2d 123, 316 N.Y.S.2d 887 (Crim.Ct., N.Y.Co., 1970) (Shalleck, J.) reversed on other grounds, 71 Misc.2d 352, 336 N.Y.S.2d 100, affirmed, 32 N.Y.2d 821, 345 N.Y.S.2d 1013, 299 N.E.2d 257. In the case at bar, the People allege and the defendant does not controvert, that the respective informations were filed on or about July 25, 1985 and on or about August 1, 1985. Therefore, this court does have jurisdiction over the subject matter.

The only question remaining is whether this court ever obtained jurisdiction over the defendants McFarlan(e) and MacFarlene Co. Jurisdiction over the person of the defendant is acquired when the defendant appears before the court. People v. Grant, supra; See also People v. Rockwell, 38 Misc.2d 645, 237 N.Y.S.2d 223 (Crim.Ct., N.Y.Co., 1963) (Shalleck, J.). As stated in the facts above, it appears that the defendants herein never personally were before the court. Defendants' only representation in court was by private counsel or by Corporation Counsel itself. Therefore, I find that this court never obtained jurisdiction over the person of the defendants. As stated in People v. Levins, supra:

"[An] appearance of [defendant] by counsel does not confer on the court jurisdiction to try the case on the merits." People v. Levins, supra, 152 Misc. 652, 273 N.Y.S. 941.

However, my decision that this court does not as yet have jurisdiction over the defendants does not dispose of this motion. Defendants have not shown--and I cannot find--any caselaw that would authorize me to dismiss this case because of a lack of jurisdiction. See, for example, People v. Diamond, 41 Misc.2d 35, 244 N.Y.S.2d 901 (AT2, 1963).

The defendants, as shown by the fact that they have never defaulted on any court dates and have submitted their own affidavit in support of this motion, obviously received notice of these criminal proceedings....