People v. McDonald
| Decision Date | 29 October 1957 |
| Citation | 167 N.Y.S.2d 394,8 Misc.2d 50 |
| Court | New York County Court |
| Parties | The PEOPLE of the State of New York, Plaintiff-Respondent, v. George R. McDONALD, Defendant-Appellant. The PEOPLE of the State of New York, Plaintiff-Respondent, v. John E. GRIFFEN, Defendant-Appellant. |
R. Waldron Herzberg, Hudson, for defendants-appellants.
John N. McLaren, Hudson, Dist. Atty., for plaintiff-respondent.
These cases are appeals from a judgment of conviction in the Justice's Court of the Town of Germantown, presided over by the Honorable Lewis E. Lasher, Justice of the Peace. Each of the defendants has pled guilty to the crime of malicious mischief, a violation of Article 134, Section 1427, Paragraph 2 of the Penal Law of the State of New York.
Prior to the arrest of the defendants, there had been considerable publicity concerning an alleged wave of vandalism and juvenile delinquency in and about the Town of Germantown. The particular charge against the defendants was 'that on the 24th day of September, 1957, at the Germantown Cemetery, in the Town of Germantown, County of Columbia, the defendants, against the person or property of the Reformed Cemetery Association did wrongfully, unlawfully, corruptly, falsely, maliciously and knowingly remove two gravestones from the cemetery and left one on the lawn of Lewis Lasher and the other in the front of the residence of Warren Bohnsack.' To this charge each of the defendants entered a plea of guilty. The defendant George R. McDonald was sentenced by the Justice to serve six months in the Columbia County Jail, and the defendant John E. Griffen was sentenced to serve one year in the Columbia County Jail.
On appeal defendants' counsel urged several grounds for the reversal of the conviction. It is contended that the Court failed to advise the defendants of their rights to counsel at all stages of the proceeding, as prescribed by Section 188 of the Code of Criminal Procedure, and the due process clause of the Fourteenth Amendment to the United States Constitution. The Justice's return to this Court, I believe, discloses that the defendants were completely and thoroughly advised of their rights, and this fact is substantiated by the fact that a third defendant charged with the commission of the same crime at the same time, did obtain an adjournment to procure counsel, and an application was made to this Court to remove the same, which was done. The statement of a Justice in his return prevents this court from going beyond such an allegation, and the Court is bound by the return of the Justice. People v. Mason, 307 N.Y. 570, 122 N.E.2d 916; People v. Helmes, 144 Misc. 695, 259 N.Y.S. 911; People v. Scutt, 160 Misc. 25, 289 N.Y.S. 1042.
Another ground of appeal is that the Justice had no jurisdiction because it is contended that the defendants were illegally arrested. An illegal arrest is no defense to a criminal prosecution and does not affect the jurisdiction of the Court and a plea of guilty certainly waives the objection. See Rose v. McKean, 190 Misc. 982, 76 N.Y.S.2d 391; People v. Burns, 19 Misc. 680, 44 N.Y.S. 1106.
It is also urged that the conviction constitutes a nullity in that the information does not state a crime, it being contended that to constitute a violation of subdivision 2 of Article 134, Section 1427 of the Penal Law, the information must state that the defendant was 'not the owner' of the gravestone removed. I feel that the information stated a crime when it stated that the gravestones were removed from the cemetery and that the act was an act against the person and property of the Reformed Cemetery Association.
The most serious charge upon appeal is the contention of the defendants that the Justice was disqualified because of the fact that the information states that one of the gravestones was left on the lawn of Lewis Lasher, the said Lewis Lasher being the Justice of the Peace before whom the defendants pled guilty. Section 14 of the Judiciary Law of the State of New York provides in part that 'a judge shall not sit as such in, or take any part in the decision of an action * * * in which he is interested * * *.' It has been held that this interest must be an interest in a pecuniary or property right, and one from which the judge might profit or lose. See Matter of Hancock's Will, 91 N.Y. 284. The question of when a judge should...
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