People v. Sessa

• Decision Date: 28 May 1964
• Citation: 43 Misc.2d 24,250 N.Y.S.2d 193
• Parties: PEOPLE of the State of New York, Plaintiff, v. Charles SESSA, Defendant. -B
• Court: New York City Court

Page 193

250 N.Y.S.2d 193

43 Misc.2d 24

PEOPLE of the State of New York, Plaintiff, v. Charles SESSA, Defendant.

Criminal Court of City of New York, New York County, Part 2-B.

May 28, 1964.

Frank S. Hogan, Dist. Atty. (Vincent Cuccia, Asst. Dist. Atty., of counsel), for the People.

Stanley Hendricks, New York City (Joseph Aronstein, New York City, of counsel), for defendant.

WILLIAM E. RINGEL, Judge.

The defendant moves to dismiss count 3 of the information, filed against him by the district attorney of this county, which charges him with the commission of a misdemeanor, (sec. 1141, Penal Law). The motion is based on his contention that he was arrested without a warrant on December 30, 1963, for a misdemeanor committed in the arresting officer's presence on December 29, 1963 and that such a warrantless arrest, after the fact, was unlawful, requiring a dismissal of that particular count.

The facts disclose that on December 29th, the arresting officer purchased certain alleged obscene material from the defendant in a book store in this county. On December 30th, the officer applied, to a judge of this court, for a search warrant. In support of this application he supplied an affidavit, setting forth the December 29th purchase and exhibited to the judge the obscene material purchased. The warrant was granted; a search of the defendant's premises was made thereunder on December 30th at which time obscene material was seized. The defendant was thereupon arrested and arraigned on December 31st, before a judge of this court. The arraignment was on a sworn complaint, made by the officer, charging violations of section 1141 Penal Law on both December 29th and December 30th. The matter was adjourned to January 15, 1964 on which date the defendant pleaded not guilty to the charges contained in the complaint.

Subsequently, on February 10th, the defendant waived examination on the complaint and demanded a trial before a panel of three judges. Such action, by the defendant requires the filing of an information by the district attorney, in the event he decides to prosecute, as was done in this case. (New York City Criminal Court Act, secs. 40, 42).

The information thus filed, contains three counts. The first two counts charge the defendant with misdemeanor offenses alleged to have been committed by him on December 30th, and the third count charges the misdemeanor alleged to have been committed by him on December 29th.

A misdemeanor having been committed in the officer's presence on December 30th, the defendant's arrest, without a warrant, constituted a lawful arrest. (Sec. 177, subd. 1, Code of Criminal Procedure). The defendant has conceded as much. He does not challenge either of the first two counts, nor has he moved to controvert the search warrant.

He does claim, however, that when he was arrested on December 30th for the misdemeanors alleged to have been committed by him on that day, that that also constituted an arrest for the misdemeanor alleged to have been committed by him, in the officer's presence, on December 29th. He urges further, that such latter arrest was without a warrant and therefore unlawful, requiring the dismissal of count 3.

This claim by the defendant is pure speculation. It is not supported by anything in the record. Assuming arguendo, that such a warrantless arrest did in fact take place, the few reported cases on this subject indicate, it would be a valid arrest, if made within a reasonable time after the occurrence. Thus, such an arrest made a week after the event is undoubtedly invalid. (People v. Adler, 3 Park Cr.R. 249). However, such arrests made 30 minutes after the event (Butolph v. Blust, 41 How Pr . 481), was upheld. Additionally, in Stevens v. Gilbert, 120 N.Y.S. 114, which was a suit for false imprisonment, the Appellate Term of the Supreme Court upheld the trial court's refusal to charge that a warrantless arrest for a misdemeanor must be made at the very time of its commission. Furthermore section 177, subd. 1, supra, does not prescribe any time limit within which such a misdemeanor arrest may be made.

There is also ample authority for the conclusion, that where the court has jurisdiction of the offense, the manner or means by which the defendant is brought before the court, is immaterial and of little importance. The court still has the power to try and sentence such a defendant. (People v. Baxter, 178 Misc. 625, 36 N.Y .S.2d 1020; People ex rel. Taylor v. Ramsden, 27 Misc.2d 641, 643, 212 N.Y.S.2d 821, 823; People v. Smith, 36 Misc.2d 889, 233 N.Y.S.2d 164).

However, it is not necessary to dwell on these aspects of the law any further, since the motion must be denied for another compelling reason.

Prior to the merger of the New York City Magistrates Courts and the Court of Special Sessions, (Ch. 697, L.1962, eff. Sept. 1, 1962), a defendant arraigned on a complaint, might demand a hearing or waive examination thereon, before a magistrate (Sec. 190, C.C.P.) . Thereafter the district attorney might decline to prosecute further or if the facts warranted it, he was required to file an information. (People v. Dillon, 197 N.Y. 254, 90 N.E. 820).

In the event he decided on further prosecution and filed an information, he was...