People v. Mack

• Decision Date: 28 April 1981
• Citation: People v. Mack, 439 N.Y.S.2d 912, 53 N.Y.2d 803, 422 N.E.2d 572 (N.Y. 1981)
• Parties: , 422 N.E.2d 572 The PEOPLE of the State of New York, Respondent, v. Willie MACK, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 912

439 N.Y.S.2d 912

53 N.Y.2d 803, 422 N.E.2d 572

The PEOPLE of the State of New York, Respondent, v.Willie MACK, Appellant.

Court of Appeals of New York.

April 28, 1981.

Frank M. Blancato, Peekskill, for appellant.

Carl A. Vergari, Dist. Atty. (Gerald D. Reilly and Anthony J. Servino, Asst. Dist. Attys., of counsel), for respondent.

OPINION OF THE COURTMEMORANDUM.

The order of the Appellate Division should be affirmed, 75 A.D.2d 586, 426 N.Y.S.2d 792.

Defendant appeals from an order affirming his conviction, on a plea of guilty, of assault in the second degree.The underlying alleged error on which he grounds his appeal was the denial of his motion to dismiss the indictment for failure of compliance with the provisions of former subdivision 2 of section 812 of the Family Court Act(L. 1977, ch. 449), which at the time of his prosecution provided:

"The presiding justice of each judicial department shall designate by rules of court the appropriate law enforcement official, who may be a probation officer, warrant officer, sheriff, police officer, or any other law enforcement official, to advise any petitioner or complainant bringing a proceeding under this section, before such proceeding is commenced, of the procedures available for the institution of family offense proceedings, including but not limited to the following:

"(a) That there is concurrent jurisdiction with respect to family offenses in both family court and the criminal courts;

"(b) That a choice of forum by a complainant or petitioner bars any subsequent proceeding in an alternative court for the same offense;

"(c) The legal, social and practical consequence of an adjudication by the family court and that an adjudication in family court is for the purpose of attempting to keep the family unit intact.Referrals for counseling, or counseling services, are available through probation for this purpose.

"(d) The legal, social and practical consequence of an adjudication by the criminal courts and that an adjudication in the criminal courts is for the purpose of punitive action against the offender."

It is his contention that the criminal action was jurisdictionally defective because the proceeding concerned acts which would constitute assault in the second degree between spouses and because his wife as complainant was never advised of the procedures available for the institution of family offense proceedings in Family Court in compliance with the statutory prescription.

There is a threshold procedural obstacle to consideration of defendant's substantive contention which he cannot surmount; by...