People v. Preble

• Decision Date: 12 April 1963
• Citation: 240 N.Y.S.2d 845,39 Misc.2d 411
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Hester A. PREBLE, Defendant.
• Court: New York Justice Court

Page 845

240 N.Y.S.2d 845

39 Misc.2d 411

The PEOPLE of the State of New York, Plaintiff, v. Hester A. PREBLE, Defendant.

Police Court of Village of Lloyd Harbor, Huntington Township, Suffolk County.

April 12, 1963.

Bernard C. Smith, Dist. Atty. of Suffolk County, Riverhead, L. I., Charles W. Root, Asst. Dist. Atty., Northport, L. I., of counsel, for plaintiff.

Hester A. Preble, in pro. per.

CHARLES C. MacLEAN, Jr., Police Justice.

The defendant was arraigned on September 29, 1962, on an information sworn to by Office Robert Polacek, a member of the Police Department of the Village of Lloyd Harbor, charging her with having crossed a double line in violation of Section 1126(a) of the Vehicle and Traffic Law. She declined the opportunity to obtain counsel, and pleaded not guilty to the charge. With the consent of the Court, the proceedings were adjourned from time to time until December 29, 1962, when the case was tried.

Officer Polacek, called as a witness for the People, testified that, shortly after completion of his tour of duty at 6:00 P.M. on August 31, 1962, he had started for home in his own automobile and was proceeding south on West Neck Road in the Village when he heard the defendant behind him, coming on fast, and that, at a point approximately 200 or 300 yards before the boundary of the Village, she swung out and passed him, crossing a double line in order to do so.

Mrs. Preble testified that she had been visiting friends that afternoon in Lloyd Harbor in the company of her children and Francis H. Hoyt, and, realizing that the hour was late, left her friends' house with Mr. Hoyt and the children to meet her husband at the train. She admitted that she passed the officer at a point on West Neck Road at which there was a double line and that she may have crossed such line while passing him. Her defenses are twofold, viz., that the point at which she passed the officer was not located within the Village but a mile or so to the south of the Village line, and that when she started to pass him, there was sufficient room to do so without crossing the double line but that as she was alongside, he pulled over, forcing her to cross the line.

The officer, who was in uniform, sounded his horn repeatedly after Mrs. Preble passed him but she did not stop, apparently because she did not recognize him as a policeman. He followed her for a considerable distance beyond the Village line into Huntington, where he attracted the attention of a Suffolk County police car, which stopped her. The Suffolk County policeman 'loaned' a uniform traffic ticket to the officer, who filled it out, signed it, and served it upon the defendant then and there. The ticket 'notified' Mrs. Preble 'to appear' in this Court on September 29, 1962 'to answer a charge of * * * Crossing Double Line' in violation of Section 1126 of the Vehicle and Traffic Law. Printed at the bottom of the ticket was a notice with respect to the significance of a plea of guilty to the charge, as authorized by the Code of Criminal Procedure, §§ 335-a, and the warning: 'Your failure to appear may result in a warrant for your arrest.' ¹

When these matters were brought out, the Court raised the question whether the proceedings were proper in view of the decision of the Court of Special Sessions of the City of New York in People v. Haber, 20 Misc.2d 272, 191 N.Y.S.2d 497 (N.Y.Co.1959), reversing a conviction for speeding within the limits of the City on the ground that the traffic summons had been served beyond the City limits by a policeman who had pursued the defendant into Nassau County. At the conclusion of the trial, the case was adjourned to permit consideration of this question, and the Court has since had the benefit of a brief for the People citing many of the relevant authorities.

The grounds of the decision in Haber, as amplified in the concurring opinion of Gassman, P. J., were as follows (20 Misc.2d, at pp. 274-276, 191 N.Y.S.2d at pp. 500-501):

"The jurisdiction of a local court must be exercised within the locality, and its process cannot be executed outside of it'.

Geraty v. Reid, 78 N.Y. 64, 67. A local court has no authority to send its process for service outside its territorial limits and acquires no jurisdiction of the person by such service. Conor v. Hilton, 66 How.Pr. 144; Beach v. Bainbridge, 7 Hun 81 * * *.

'It is true that if the Magistrate has jurisdiction of the subject matter and the defendant is physically before him, the manner in which the arrest was made is immaterial in determining the court's jurisdiction. People v. Banner, 5 Misc.2d 355, 164 N.Y.S.2d 53, 57; People v. McDonald, 8 Misc.2d 50, 167 N.Y.S.2d 394. It is also true that it is no defense to a criminal prosecution that a defendant was illegally brought within the jurisdiction of the court, where the court had jurisdiction of the subject matter (People v. Dileo, 194 App.Div. 793, 794, 186 N.Y.S. 156, 157; People v. Eberspacher, 79 Hun 410, 29 N.Y.S. 796; People v. Jeratino, 62 Misc. 587, 116 N.Y.S. 1121). However, all those cases involved situations where the defendant was before the court on a warrant of arrest and not as the result of the issuance of a summons, as in this case. * * *

'The Magistrate * * * having the defendant physically before him, could have issued a warrant for the defendant's arrest. However, he did not do that, but proceeded with the trial under the summons. Thus the only question before us is whether the court below acquired jurisdiction of the defendant by the service of the summons in Nassau County. In the opinion of this court, such service was ineffective.

'* * * The doctrine of 'close pursuit' does not apply to the issuance of a summons for a traffic violation. The record here discloses that the 'pursuit' of the defendant into Nassau County was not for the purpose of making an arrest, but solely for the purpose of serving a traffic summons upon him. The service of the summons in Nassau County was a nullity.' [Italics the court's]

In form, the question involved in Haber is distinguishable from the question here presented in that the 'summons' there was issued in the name of the City Magistrates' Court of the City of New York (in the form provided by § 116 of the New York City Criminal Courts Act), whereas here the 'ticket' was not issued in the name of this Court but in the name of the officer. But the difference is more apparent than real. The summons in Haber was on a blank form issued in the name of the chief magistrate of the City to the City's police force, and disregard thereof entailed no penalty for contempt of court or other consequence. New York City Criminal Courts Act, § 116; People v. Kempner, 95 N.Y.S.2d 425 (City Mag.Ct., N.Y.City 1950); but see City of Buffalo v. Neubeck, 209 App.Div. 386, 390, 204 N.Y.S. 737, 740 (4th Dept. 1924). ² Such a summons is, therefore, quite unlike a summons that a court may issue in lieu of a warrant of arrest pursuant to section 150 of the Code of Criminal Procedure, the disregard of which constitutes a contempt, punishable by fine.

In view of the nature and purpose of a policeman's traffic ticket, we see nothing in principle which would make it improper for an officer to issue such a ticket outside the limits of the jurisdiction that appointed him and in which the ticket is returnable. ³ A traffic ticket notifies the party served therewith, in effect, that the officer signing the ticket intends to submit a complaint to a court at a certain time and place, and that if the party served does not appear then and there, the court will be requested to issue a warrant for his arrest. Although the recipient of a traffic ticket is entitled to demand an immediate appearance before a magistrate of a town in the county in which the offense charged is alleged to have been committed (Code of Criminal Procedure, § 164), and although certain other consequences may flow from the issuance of such a ticket, ⁴ a party served with such a notice is entirely free to disregard it. No penalty attaches for a failure to heed it. Mormon v. Baran, 35 N.Y.S.2d 906, 909 (Sup.Ct., Nassau Co. 1942) ('Such summons is an invitation to a defendant to come into court so that he may not be subjected to the embarrassment of arrest'). The fact that such a failure may lead the complainant to ask the court to issue a warrant of arrest gives rise to no cause for complaint on the part of the person served. It is not the threat of an arrest but only the arrest itself which, if improperly made, gives rise to a cause for complaint, and then only against the persons participating in the arrest. Cf. People ex rel. Hastings v. Hofstadter, 258 N.Y. 425, 429, 180 N.E. 106, 107, 79 A.L.R. 1208 (1932); People v. Yerman, 138 Misc. 272, 246 N.Y.S. 665 (Oneida Co.Ct., 1930); Jones v. State, 8 Misc.2d 140, 141, 167 N.Y.S.2d 536, 537 (Ct.Claims, 1957).

Moreover, it is clear that the issuance of such a ticket is neither necessary nor effective to confer jurisdiction on the court in which it is returnable. It is now settled beyond question that even though a person served with a uniform traffic ticket appears in response thereto, no proceeding is begun until the charge is submitted in the form of a sworn complaint. People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d 707, 143 N.E.2d 901 (1957). With such a complaint before it, a court is authorized to proceed. If the defendant is not present when the complaint is submitted, the court may issue a warrant for his arrest. If the defendant is present, there is no need to issue a warrant for his arrest, and the court may proceed to take custody of him by arraigning him on the charge made against him. People v. Markowitz, 119 App.Div. 841, 843, 104 N.Y.S. 872, 873 (1st Dept.) ('* * * there is no necessity for a warrant. The person is before the court, and that is all that is necessary to give it jurisdiction' [Underscoring the court's]), affirmed 189 N.Y. 562, 82 N.E. 1130 (1907); People v. Hagan, ...