People v. Mosier

• Decision Date: 14 April 1958
• Citation: 10 Misc.2d 815,173 N.Y.S.2d 217
• Parties: The PEOPLE of The State of New York, Plaintiff-Respondent, v. Charles B. MOSIER, Defendant-Appellant.
• Court: New York Supreme Court

Page 217

173 N.Y.S.2d 217

10 Misc.2d 815

The PEOPLE of The State of New York, Plaintiff-Respondent, v. Charles B. MOSIER, Defendant-Appellant.

Supreme Court, Erie County.

April 14, 1958.

John F. Nugent, Buffalo, for defendant-appellant.

Robert A. Burrell, Buffalo, for plaintiff-respondent.

JASEN, Justice.

This is an appeal from a judgment of the City Court of Buffalo convicting appellant of leaving the scene of an accident, a misdemeanor, in violation of Section 70, subd. 5-a of the Vehicle and Traffic Law of New York State. The court imposed a fine of $50 and revoked appellant's license to operate a motor vehicle. Appellant claims that the information upon which he was put to trial, was fatally defective in that the allegations therein are made upon information and belief, therefore depriving the trial court of jurisdiction to try him. If appellant is correct, there can be no valid conviction. People v. Staples, Yates Cty.Ct.1957, 5 Misc.2d 619, 162 N.Y.S.2d 131. Appellant moved, at the opening of the trial, for the dismissal of the information as being defective. The motion was denied by the court. He again renewed his motion at the conclusion of the people's case, thereby preserving his right to attack the information on this appeal. People v. Taylor, Nass.Cty.Ct. 1936, 159 Misc. 536, 289 N.Y.S. 668.

The information, filed by the complainant, Erle A. Smith, charged the appellant with the crime of leaving the scene of an accident in essentially the words of the statute, adding the date, the name and address of the appellant, and the name of the street on which the appellant allegedly was travelling when he struck complainant's automobile. Added at the bottom of the charge was the following statement:

'This affidavit is made upon information and belief and the source of deponent's information and the grounds for his belief, defendant's statement of admission hereto attached, all of which deponent believes to be true. Wherefore the said complaint prays that a proper warrant may issue according to law, touching the premises.'

The signature of the complainant then appears, duly sworn to before a Clerk of the City Court of Buffalo.

The question of the legal sufficiency of an information insofar as the information may or may not require factual evidence, duly sworn to, to be included in the information has been a source of constant litigation in the courts of this state. There is now little question that when an information is the basis of a warrant of arrest, it must contain factual evidence given on oath, or be supported by affidavits, on oath, containing such evidence, which tends to show that a crime has been committed and that the defendant is guilty of the crime. People ex rel. Livingston v. Wyatt, 1906, 186 N.Y. 383, 391, 79 N.E. 330, 333, 10 L.R.A.,N.S., 159; People v. Belcher, 1951, 302 N.Y. 529, 99 N.E.2d 874; People v. Bertram, 1951, 302 N.Y. 526, 99 N.E.2d 873.

As stated by the court in the Belcher case:

'In misdemeanor cases prosecuted in courts of special sessions outside of New York City, the same information often serves both as the basis for the issuance of the warrant upon which the defendant is arrested and as the pleading on which the defendant is thereafter tried. Where an information is employed to obtain a warrant of arrest, it may not rest on hearsay, but must set forth--or be supported by one or more depositions setting forth--facts, stated under oath by a person competent to testify about them, or other proper evidence, tending to show the commission of a crime and the defendant's probable guilt. * * * If, in such a case the information is based solely on inadmissable hearsay, the defendant is entitled to a dismissal of the proceeding.' People v. Belcher, supra, 302 N.Y. at page 533, 99 N.E.2d at page 876.

The court in the Belcher case went on to point out that in a case, such as the one here, where the information is used solely as a pleading, there is 'no explicit constitutional or statutory requirement that the information, when so utilized, be sworn to by a person competent to testify to the facts recited'. It specifically left open the question whether such a requirement should be enforced upon considerations of policy.

There are good reasons for both views. When an information serves only the purpose of a pleading, the defendant has not been and will not be deprived of his liberty unless, after a fair trial, he has been proven guilty of the crime charged by sworn testimony. Cf. People v. Mezzatesta, J...