People v. Montgomery

• Decision Date: 04 September 1957
• Citation: 166 N.Y.S.2d 455,7 Misc.2d 294
• Parties: The PEOPLE of The State of New York v. Harriet MONTGOMERY, Defendant.
• Court: New York Court of Special Sessions

Page 455

166 N.Y.S.2d 455

7 Misc.2d 294

The PEOPLE of The State of New York v. Harriet MONTGOMERY, Defendant.

Court of Special Sessions, Richmond County.

Sept. 4, 1957.

Peter Campbell Brown, Corp. Counsel, New York City, by Joseph Entel, Asst. Corp. Counsel, New York City, for plaintiff.

Jack A. Corso, St. George, Staten Island, for defendant.

BENJAMIN GASSMAN, Presiding Justice.

In an information filed by the District Attorney of Richmond County, the defendant is charged with a violation of Section 183 of the Sanitary Code of the City of New York, in that on or about and prior to June 5, 1957, she poured concrete into a storm water culvert built by the City of New York, completely closing that culvert and causing water to back up and flood the surrounding properties, thus creating a nuisance and a hazard to public health and safety.

The defendant now moves to dismiss the Information on two grounds, to wit: (1) that the Information is insufficient in law 'in view of the requirements of Section 149 of the Code of Criminal Procedure', and (2) that the charges herein can only be prosecuted by the District Attorney of Richmond County and not by the Corporation Counsel of the City of New York.

With respect to the first ground, defendant conceded upon the argument of this motion that her first objection is addressed to the Information and not to the affidavit or deposition filed in the Magistrate's Court. To that extent, the motion may be treated in the nature of a demurrer and the Court holds that the Information is legally sufficient and substantially complies with the provisions of Section 742 of the Code of Criminal Procedure.

As to the second ground, which questions the right of the Corporation Counsel to prosecute this action, it is defendant's contention that the District Attorney of Richmond County is the only proper officer to conduct the prosecution.

Section 700 of the County Law generally provides that the District Attorneys shall conduct all prosecutions for crimes and offenses in their respective counties. However, the right to prosecute is not vested exclusively in the District Attorneys in certain offenses, particularly those involving local laws.

In People on the Information of Bruckner v. Wyner, 207 Misc. 673, 142 N.Y.S.2d 393, 395, the defendant was convicted after trial in the Court of Special Sessions in the Village of Pelham Manor, of a violation of Section 70 subdivision 5 of the Vehicle and Traffic Law. On appeal to the County Court of Westchester County, defendant urged as one of the ground for reversal of his conviction, the fact that the Village Attorney and not the District Attorney of Westchester County prosecuted that action. He contended that it was the duty of the District Attorney to prosecute all crimes committed within the county and that there was no law which authorized the Village Attorney to conduct such prosecutions. The court dismissed that contention and in affirming the conviction, stated that 'So far as the defendant is concerned, it is not for him to select his prosecutor', citing People v. Kramer, 33 Misc. 209, 220, 68 N.Y.S. 383, 391. Further in the opinion, the court said (207 Misc. at page 675, 142 N.Y.S.2d at page 396): 'To say that this conviction is illegal because the prosecution was by one other than the District Attorney would require a reversal, not only of this conviction, but also a reversal of long-established and accepted procedure and practice of over a century. Prosecutions of misdemeanors and offenses in the lower courts are usually conducted by local authorities, * * *. Not only is there long-established precedent, but there is statutory indication that private counsel may prosecute the complainant's case in courts of special sessions. Sections 203 and 702-a, Subdivision 2, of the Code...