People v. Niosi

• Citation: 73 Misc.2d 604,342 N.Y.S.2d 864
• Parties: PEOPLE of the State of New York, Plaintiff, v. George NIOSI, Defendant.
• Decision Date: 18 April 1973
• Court: New York District Court

Page 864

342 N.Y.S.2d 864

73 Misc.2d 604

PEOPLE of the State of New York, Plaintiff, v. George NIOSI, Defendant.

District Court, Suffolk County, First District.

April 18, 1973.

George J. Aspland, Dist. Atty., Riverhead, for the People.

Jerome S. Ventra, Garden City, for defendant.

MEMORANDUM

ALEXANDER W. KRAMER, Judge.

The defendant is accused of violating Article 2, Section 9 of the General Business Law in that it is alleged that he offered and sold certain meat products at his butcher shop on the Sabbath.

The defendant contends that the court should dismiss the misdemeanor complaint since, statutorily and by case law, such an offense is a violation and cannot be prosecuted, as in the case at bar, by a misdemeanor complaint.

While the General Business Law Art. 2, Section 4 states that Sabbath breaking is a misdemeanor, such a classification is incorrect. As the defendant's attorney correctly points out, section 55.10(3)(a) of the Penal Law states that any law which imposes a sentence of imprisonment not to exceed 15 days, or the sentence is only a fine, shall be classified as a violation, notwithstanding any other designation in the law or ordinance defining it. For Sabbath breaking, the first offense is punishable by a fine of no more than ten ($10) dollars or by imprisonment not to exceed five days, or by both. Therefore, Sabbath breaking, as a first offense, is clearly a violation. This statutory interpretation is clearly set forth by case law (People v. L.A. Witherill, Inc., 29 N.Y.2d 446, 328 N.Y.S.2d 668, 278 N.E.2d 905).

The defendant alleges that the People may not amend the misdemeanor complaint filed in this case but must dismiss the case forthwith.

The offense with which the defendant is charged is a violation. Accordingly, Section 1.20 subd. 39 of the CPL provides that violations shall constitute petty offenses for which this court, as a local criminal court, has exclusive trial jurisdiction except where such an offense is charged in an indictment which also charges a crime (CPL § 10.30(1)(a)). Therefore, whatever the classification of the crime--misdemeanor or violation--this court has jurisdiction over the subject matter.

Section 140.45 of the CPL provides that:

If an information, a misdemeanor complaint or a felony complaint filed with a local criminal court pursuant to section 140.20, 140.25 or 140.40 is not sufficient on its face, as prescribed in section 100.40, and if the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an accusatory instrument which is sufficient on its face, it must dismiss such accusatory instrument and discharge the defendant.

An information is sufficient on its face when:

(a) It substantially conforms to the requirements prescribed in section 100.15; and

(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information.

(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof. (CPL § 100.40(1))

With respect to the requirements of CPL § 100.40(1), the accusatory instrument complies with all the requirements set forth therein.

The court is of the opinion that the labeling of the accusatory instrument as a 'misdemeanor complaint,' even though the offense charged is a violation, does not make the instrument jurisdictionally defective. Under the former Code of Criminal Procedure, Section 684, an error with respect to any proceeding or...