People v. Nieke

• Decision Date: 23 May 1967
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Theresa Marie NIEKE, Defendant.
• Court: New York City Court

Page 187

280 N.Y.S.2d 187

53 Misc.2d 872

The PEOPLE of the State of New York, Plaintiff, v. Theresa Marie NIEKE, Defendant.

City Court of Port Jervis, Orange County.

May 23, 1967.

Angelo Ingrassia, Dist. Atty. of Orange County, by Jerome S. Cohen, Asst. Dist. Atty., Port Jervis, of counsel, for the People.

Ara Anooshian, Port Jervis, for defendant.

DECISION

ELIAS ARONSON, Judge.

This is a motion brought to vacate the issuance of a warrant of arrest and to dismiss an information as being jurisdictionally defective.

The defendant was first arrested in violation of Section 177 of the Code of Criminal Procedure and taken to the police station; while there confined, an immediate information was prepared, a warrant of arrest issued. She was then again arrested pursuant to the warrant and brought before the court for arraignment. At the time of the arraignment the Court on its own motion adjourned the matter for all purposes to the following day, and paroled the defendant in her own custody. Despite this parole, defendant was then physically taken to the Middletown State Police barracks some twenty-three miles away, and fingerprinted and photographed. This constituted a third arrest since the Court by its parole released the defendant from custody until at least the next day; and the charge was not one of those indicated as coming within the purview of Sections 952 and 940 of the Code of Criminal Procedure.

Although the initial arrest in violation of Section 177 of the Code of Criminal Procedure was illegal (People v. Papp, 1959, 19 Misc.2d 331, 185 N.Y.S.2d 907; Ranke v. State, 206 Misc. 569, 134 N.Y.S.2d 83; People v. Moore, 11 N.Y.2d 271, 228 N.Y.S.2d 822, 183 N.E.2d 225), in the case of People v. Ostrosky, 95 Misc. 104, 107, 160 N.Y.S. 493, 496, it was held in effect, if, while defendant is in custody, an information was legally and properly prepared and was in proper form and context, though made on information and belief, and which included the source of the information, and was supported by a properly executed affidavit sufficient to justify the issuance of a warrant, then warrant could properly issue; (People v. Mezzatesta, 203 Misc. 253, 115 N.Y.S.2d 498) just so long as the information contains the offense charged, the time of the commission of the offense, the place of its commission and a proper verification. The purpose of the warrant is to bring the defendant before the court; the purpose of the information is to advise the defendant of the charge against her and to enable her to prepare for trial. (People v. Sharpe, 207 Misc. 39, 136 N.Y.S.2d 494.) All that is necessary is that the magistrate, on the papers before him, be satisfied that the statutory provisions had been complied with. (Code Cr. Proc. Section 150, Subd. 2) Thereafter, since an information is a pleading, defendant may at any time move to dismiss the information on the ground that it is jurisdictionally defective (People v. Lee, 151 Misc. 431, 272 N.Y.S. 817), or, like any pleading, by uncontroverted facts, or contested by affidavit or on the record, any party to a proceeding may move for judgment. This holds true whether it be a criminal or civil matter.

The test as to whether or not a criminal court judge should issue a warrant is: Are the facts set forth (in the information and the supporting affidavit) sufficient if proven, to show a reasonable ground of suspicion to support the proof that a crime was committed and that it is reasonable to presume that the named defendant committed that crime? (People v. Mezzatesta, 203 Misc. 253, 115 N.Y.S.2d 498, supra) (People v. Resciniti, 191 Misc. 719, 81 N.Y.S.2d 338) That test has been met. The validity of the issuance of the warrant on the information as presented must therefore be reconciled on the fact that it does indicate a crime had been committed and that it was then reasonable to presume this defendant committed that crime.

However, the issuance of a warrant does not affect the validity of the information either directly or indirectly. Although an information performs the function of an indictment it need not be framed with the same exactness as an indictment, just so long as it contains sufficient statements and allegations to inform the magistrate that the designated crime was committed. Section 148 of the Code of Criminal Procedure contemplates an information on one or more supporting depositions. But both can be combined to set forth facts sufficient to justify the issuance of a warrant without further testimony. (People v. Mezzatesta, supra). Thus, we must conclude that the warrant of arrest was properly issued although this is no proof of the validity of the information, or the legality of the information, nor does it constitute a waiver of the defects that might appear therein, either of law or fact.

Defendant is charged with the crime of violation of Section 1898, subdivision 5 of the Penal Law, insofar as is related to Section 1897, subdivision 4 of the same Law.

The defendant attacks the information on the ground that it fails to allege facts constituting a crime and is jurisdictionally defective. At first blush the information appears to be good since it states the source of the information supported partially on information and belief and has appended to it an affidavit by a witness from whom that information emanated. However, it might be argued that the witness is an accessory to the alleged crime and is also guilty of a separate crime growing out of the same set of facts and is in pari-delicto with this defendant, hence, his affidavit at this point is not worthy of belief and has no probative force. (Code of Criminal Procedure, § 399) (People v. Smith, 26 A.D.2d 588, 272 N.Y.S.2d 33)

The information complained of reads as follows:

State of New York, County of Orange, City of Port Jervis. SS.: Be it Remembered that I, S. W. Catizone, a peace officer of the State of New York, to wit: An Investigator of the New York State Police, Executive Department, Division of State Police, attached to Troop K at Middletown, New York, now come before Elias Aronson, Acting City Judge of the City of Port Jervis, in the County of Orange, New York and give information under oath as follows: That one Theresa Marie Nieke on the 31st day of March, 1967, at the Sears & Roebuck Store of the City of Port Jervis, County of Orange, New York, at about 4:00 o'clock in the afternoon of said day, did commit the crime of disposing BB Gun in violation of Article 172, Section 1898, subdivision 5 of the Penal Law of the State of New York by wrongfully, unlawfully, willfully and knowingly dispose of a weapon specified in Article 172, Section 1897, subdivision 4 of the Penal Law to a person under the age of sixteen, to wit: Defendant did at above time and place sell a Sears & Roebuck slide action BB gun to George Joseph Mathisen, dob 4/6/53, age thirteen, of Cahoonzie, New York, for $11.98, while it is a misdemeanor to sell a BB gun to a person under the age of sixteen. This information is based upon information and belief, the basis for which being police investigation, oral statement of defendant and attached deposition of George Joseph Mathisen. Wherefore, your informant prays that the deposition of informant and George Joseph Mathisen, witness, may be reduced to writing and duly subscribed, and that a warrant issue for the arrest of said accused, and that he be dealt with pursuant to the provisions of the Code of Criminal Procedure.

The supporting affidavit of George Joseph Mathisen reads as follows:

State of New York, County of Orange, City of Port Jervis, sS.: I, George Joseph Mathisen, am 13 years old, born on April 6, 1953, and live at Route 42, Cahoonzie, New York. I am in the 6th grade at Port Jervis, New York Central School. I can read and write. On Wednesday last week at about 5:00 PM I was home and called Sears & Roebuck in Port Jervis, New York and ordered a slide action BB gun. It sounded like a female that took my order. She said it should be here by Friday. On Friday, March 31, 1967, after school about 4:00 PM I walked from school and went into Sears & Roebuck. I went into the store and a woman was at the Catalogue Department. She was about nineteen, brown hair, wore glasses and had on a green dress. I told her I came to pick up a BB gun and gave her my name. She looked up my name, went to the back of the store and came back with a box that had a slide action BB gun in it. In the catalogue it was only $10.97 but I had to pay $11.98. I paid the woman $11.98 and she gave me the gun. The woman that sold me the gun did not ask me how old I was or for any identification. The woman that I ordered the BB gun over the telephone didn't ask my age. On Monday, April 3, 1967, two men from the NYSP Inv. Catizone and Inv. Cleary took me to Sears & Roebuck in Port Jervis, New York with Det. Wagner from Port Jervis, New York PD. I pointed out the woman about 4:00 PM who sold me the BB gun and I was told that her name is Theresa Marie Nieke. I have read the above and I swear it is all true. I have been told that it is a serious crime to swear to something that isn't true.

Section 1897 (subd. 4 of the Penal Law) reads:--

4. Any person under the age of sixteen years, who has in his possession any of the weapons, instruments, appliances or substances specified in the first three subdivisions of this section, or any air-gun, spring-gun or other instrument or weapon in which the propelling force is a spring or air, or any gun, or any instrument or weapon in or upon which any loaded or blank cartridges may be used, or any loaded or blank cartridges or ammunition therefor, or any dangerous knife, shall be adjudged a juvenile delinquent.

Section 1898 of the Penal Law reads:--

5. Any person who disposes of any of the weapons, instruments, appliances or substances specified in subdivision four of the preceding section to any other person under the age of sixteen years is guilty of a...