People v. Star Supermarkets, Inc.
| Decision Date | 07 September 1971 |
| Citation | 67 Misc.2d 483,324 N.Y.S.2d 514 |
| Parties | The PEOPLE of the State of New York v. STAR SUPERMARKETS, INC., Defendant. |
| Court | New York County Court |
Jack B. Lazarus, Dist. Atty., Rochester, for the People; Lewis Vallone, Asst. Dist. Atty., Rochester, of counsel.
Martin, Dutcher, Cooke, Mousaw & Vigdor, Rochester, for defendant; Richard S. Mayberry and Richard F. Anderson, Rochester, of counsel.
The Defendant, Star Supermarkets, Inc., by Indictment No. 201, filed March 26, 1971, was indicted by the Grand Jury of the County of Monroe under Article 2 of the General Business Law, for a violation of Section 9 of such law, for the sale of prohibited items on Sunday.
At the request of, and by consent of the Defendant and the District Attorney of the County of Monroe, prosecution of the Defendant by mesne adjournments was postponed pending the 'Hearing' and 'Determination' of a defendant similarly situated but separately indicted.
On July 23, 1971, this Court signed an Order to Show Cause returnable on July 28, 1971, ordering the People to show cause why the indictment against the defendant should not be dismissed.
After hearing oral arguments, the Court reserved decision. The Defendant submitted a Memorandum of Law to which the People answered by filing a Memorandum of Law on August 16, 1971, to which Memorandum of Law the Defendant responded by a Letter Memorandum dated August 26, 1971, received by this Court in an envelope postmarked 'September 2, 1971'.
The matter, thus, was finally submitted.
It is contended by the Defense that the Indictment should be set aside pursuant to the Code of Criminal Procedure, Sections 2--a and 245, and the Penal Law, Sections 10.00, Sub. 6, and 55.10, Sub. 3(a), on the ground that the Monroe County Grand Jury lacked authority and jurisdiction to indict upon a finding of a violation as opposed to a crime.
The People contend that the offense for which the Defendant has been indicted is a 'misdemeanor' as specified in Section 4 of the General Business Law, and not a 'violation' pursuant to Section 55.10, Sub. 3(a) of the Penal Law, as the Defendant contends.
The questions for this Court to resolve are: First, whether the offense for which the Defendant has been indicted is a misdemeanor or a violation under the law; Secondly, whether the Grand Jury of the County of Monroe had the authority and jurisdiction to indict the Defendant under the Code of Criminal Procedure in effect prior to September 1, 1971.
General Business Law, Article 2, Sec. 4, provides
'Sabbath breaking is a misdemeanor, punishable by a fine of not less than five dollars and not more than ten dollars, or by imprisonment in a county jail not exceeding five days, or by both * * *'.
Up to this point it would appear that the subject 'offense' is a misdemeanor. However, we are here concerned with Penal Law, Section 55.10, Sub. 3(a), which provides:
'3. Violations. Every violation defined in this chapter is expressly designated as such. Any offense defined outside this chapter which is not expressly designated a violation shall be deemed a violation if:
(a) Notwithstanding any other designation specified in the law or ordinance defining it, a sentence to a term of imprisonment which is not in excess of fifteen days is provided therein, or the only sentence provided therein is a fine;'
Obviously, if the offense for which Defendant has been indicted comes within the purview of Penal Law, Section 55.10, Sub. 3(a), then the subject 'offense' would in fact, constitute a 'violation'. There is no question that the subject 'offense' is defined outside the Penal Law; is not expressly designated a violation; is designated a 'misdemeanor' in the law defining it; and sentence to a term of imprisonment which is not in excess of fifteen days is provided therein.
It would appear that the subject 'offense' comes within the purview of Penal Law Section 55.10, Sub. 3(a)--unless, as the People contend, the fact that the subject 'offense' provides for a fine or imprisonment or both takes the subject 'offense' from within the purview of Penal Law Section 55.10, Sub. 3(a).
The only case known to this Court wherein the question of whether the penalty provided in the General Business Law, Article 2, is covered by Penal Law Section 55.10, Sub. 3(a) is People v. Cooks of New York, Inc., 65 Misc.2d 790, 318 N.Y.S.2d 960 (Onondaga County Court 1971). The Court, in that case, concluded that it was so covered. The contention of the Defendant-Appellant in the 'Cooks' case, and the People in the case at bar, are, in effect, the same--that Penal Law Section 55.10, Sub. 3(a) should be interpreted to mean that a term of imprisonment not in excess of fifteen days and a fine, would change the violation to a misdemeanor. In the 'Cooks' case the Trial Court held, and the Appellate Court agreed, that the law should not be so interpreted.
It appears to this Court, by recent trend of decisional law, that the classification of an...
To continue reading
Request your trial
-
Healthcare Ass'n of New York State, Inc. v. Pataki
...not in excess of fifteen days is provided therein, or the only sentence provided therein is a fine."); see People v. Star Supermarkets, Inc., 67 Misc.2d 483, 324 N.Y.S.2d 514, 516-17 (N.Y. Monroe County Ct.1971) (sabbath-breaking was a "violation," despite specific language in statute termi......
-
People v. Wayman
...trial depends on whether the zoning violation here is classified as a misdemeanor or a violation. (See also People v. Star Supermarkets, 67 Misc.2d 483, 484, 324 N.Y.S.2d 514, 516.) Whether the Town Law defines violation of a zoning ordinance as a violation or a misdemeanor is not material ......
-
People on Information of LaBounty v. County Excavation, Inc.
...and not a misdemeanor (see People v. L. A. Witherill Inc., 29 N.Y.2d 446, 328 N.Y.S.2d 668, 278 N.E.2d 905; People v. Star Supermarkets, 67 Misc.2d 483, 324 N.Y.S.2d 514, affd., 40 A.D.2d 946, 339 N.Y.S.2d 262). The Information as to him must therefore be As to the corporate defendant, it i......
-
People v. Vargas
...in the Vehicle & Traffic Law, under § 55.10(3) of the Penal Law the offense is actually a 'violation'. (People v. Star Supermarkets, Inc., 67 Misc.2d 483, 324 N.Y.S.2d 514, aff'd 40 A.D.2d 946, 339 N.Y.S.2d 262). The applicable provision of Section 55.10 of the Penal Law is to the effect th......