People v. Richmond County News Co.

• Decision Date: 30 October 1957
• Citation: 8 Misc.2d 162,167 N.Y.S.2d 406
• Parties: The PEOPLE of the State of New York v. RICHMOND COUNTY NEWS CO., Inc., Defendant.
• Court: New York Court of Special Sessions

Page 406

167 N.Y.S.2d 406

8 Misc.2d 162

The PEOPLE of the State of New York v. RICHMOND COUNTY NEWS CO., Inc., Defendant.

Court of Special Sessions of City of New York, Richmond County.

Oct. 30, 1957.

John Braisted, Dist. Atty. of Richmond County, Port Richmond, Thomas R. Sullivan, Asst. Dist. Atty., Staten Island, of counsel, for the People, etc.

Herbert Monte Levy, New York City, for defendant.

KOZINN, Justice.

The present motion of the defendant seeks 'an order dismissing the information herein on the ground that the defendant cannot be prosecuted in the absence of warning or the giving to defendant of notice of proceedings pursuant to section 22-a of the Code of Criminal Procedure, and that the court has no jurisdiction, and for such other and further relief as may be just and proper.'

Assuming (but not so deciding) that the ground urged by the defendant on this motion for a dismissal of the information has some merit, the same should be presented to and decided by the trial court after the completion of the trial, and, for that reason, the motion should be denied.

By virtue of section 31(4) of the New York City Criminal Courts Act, this court may pass upon a demurrer and test the sufficiency of the information upon the ground (Code of Criminal Procedure, sec. 323, subdiv. 4) 'that the facts stated do not constitute a crime.' If we are, therefore, to consider this motion as seeking to demur to the information, it could also be denied on the technical ground that the defendant is precluded from so doing on the present state of the record herein, which discloses that on April 10, 1957, the defendant pleaded 'Not Guilty'; a demurrer may not be entertained while such a plea stands (People v. Kahn, 155 App.Div. 821, 140 N.Y.S. 618 cited in my opinion in People v. Dill, Sp.Sess., 165 N.Y.S.2d 286). The courts have, however, overlooked technical defects in procedure (People v. Chester, 4 Misc.2d 949, 158 N.Y.S.2d 829; People v. Dill, supra). Since the defendant also prays for 'other and further relief,' this court, too, will overlook the defects in procedure on the instant motion. On a demurrer all the facts alleged are deemed to be true (People v. Decima, 2 N.Y.2d 133, 157 N.Y.S.2d 558, and People v. Chester, supra).

The information, here, sufficiently charges a violation of section 1141 of the Penal Law (sale and distribution of obscene prints and articles), and there is nothing contained in said section which requires the giving of any notice or warning before a criminal proceeding may be commenced pursuant thereto, nor does section 22-a of the Code of Criminal Procedure require the giving of such notice or warning as a prerequisite to the...