People v. Turkel

• Decision Date: 24 October 1985
• Citation: 494 N.Y.S.2d 984,130 Misc.2d 47
• Parties: The PEOPLE of the State of New York v. Abby S. TURKEL, Defendant.
• Court: New York City Court

Page 984

494 N.Y.S.2d 984

130 Misc.2d 47

The PEOPLE of the State of New York v. Abby S. TURKEL, Defendant.

Criminal Court of the City of New York,

New York County, Part SAP 1.

Oct. 24, 1985.

Jay Kranis, New York City, pro se.

No appearance for the People.

LEONA FREEDMAN, Judge:

Complainant Jay A. Kranis applies to this court for an order permitting him to serve a criminal court summons by substituted service. He alleges that the defendant Abby S. Turkel "destroyed C/W's [complaining witness'] bicycle by purposely driving over it" with her automobile. He alleges further that the named defendant is avoiding personal service but that Mr. Kranis will be able to use substituted service by affixing a copy of the summons to the door of defendant's residence and, subsequently, mailing a copy to her. I find, however, for the reasons stated below, that personal delivery--and not "nail and mail"--is the only permissible method of service upon a natural person in a criminal case. Accordingly, complainant's application is denied.

I.

Procedure in a criminal case is governed by the Criminal Procedure Law and there is no provision in the CPL for method of service of a criminal summons upon a natural person. The only provisions concerning such service are in CPL Sec. 130.40, as follows:

"1. A summons may be served by a police officer, or by a complainant at least eighteen years old or by any other person at least eighteen years old designated by the court.

2. A summons may be served anywhere in the county of issuance or anywhere in an adjoining county."

Obviously, this section does not answer the question of the methods to be used to serve the summons by a private individual. Similarly silent are the Criminal Court Act and the Rules of the Criminal Court. In addition there is very little case law on this issue. A leading Appellate Division First Department case is applicable and may be controlling. It states that, where-as here-a statute is silent as to method of service, "personal delivery" is the only permissible method. Twentieth Century-Fox Film Corp. v. Dupper, 33 A.D.2d 682, 305 N.Y.S.2d 918 (1st Dept., 1969). In this case, the plaintiff in a civil action attempted to serve process on a nonresident defendant's attorney, as an agent for service. In that case the Appellate Division stated that "[p]ersonal delivery is the only method when a statute directs service of process and is silent as to method." Twentieth Century-Fox Film Corp. v. Dupper, id., p. 682, 305 N.Y.S.2d 918.

"Personal delivery" is to be distinguished from "personal service." "Personal service" methods upon a natural person are stated in the Civil Procedure Law and Rules Section 308. "Personal delivery"--that is, "in hand" delivery--is but one method of "personal service." See, 3 Carmody-Wait 2d, Section New York Practice, 24:38, p. 686; McKinney's Cons. Law of N.Y. Book 7B, McLaughlin, Practice Commentary, C317:1, p. 352; 1 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 308.02. CPLR Section 308, includes as "personal service": 1. "Personal delivery"; 2. "delivery and mail"; 3. "service upon a designee"; 4. "substituted service" and; 5. "expedient service."

The holding in Twentieth Century-Fox Film Corp. v. Dupper, supra,--that "personal delivery" is the only permissible method of service when a statute is silent on service--has been extended by lower courts to criminal cases. In the decision of People v. Eica Construction Corp., 85 Misc.2d 1026, 381 N.Y.S.2d 377 (Dist.Ct. Suffolk Co., 1975), the complainant attempted to serve criminal process on a corporate defendant. CPL Sec. 600.10 subd. 1 sets forth the methods of service of process upon a corporation:

"Such process must be served upon the corporation by delivery thereof to an officer, director, ..."

The Eica court interpreted the phrase "by delivery thereof" to require "personal delivery" of process.

"In Twentieth Century-Fox Film Corp. v. Dupper, (33 A.D.2d 682 ) the matter was clearly settled in Civil actions by the court's holding that personal delivery is the only method when a statute directs service of process and is silent as to method, [citation omitted]. This court now applies this rule to criminal actions." People v. Eica Construction Corp., supra, 85 Misc.2d 1026 p. 1027-1028, 381 N.Y.S.2d 377.

Restating this principle for the case at bar in New York County, personal delivery of a criminal summons is required because CPL Sec. 130.40 directs service but is silent as to the permissible method and under those circumstances the Appellate Division, First Dept. and other courts have stated that only personal delivery will be allowed. Twentieth Century-Fox Film Corp. v. Dupper, supra; People v. Eica Construction Corp., supra.

II.

Complainant argues in his Memorandum of Law that "there is no viable distinction between CPL Sec. 130.40 and FRCR [Federal Rules of Criminal Procedure] Rule 4, nor is any such distinction justifiable." FRCR Rule 4(d)(3) provides for service of a criminal summons in a federal case by personal delivery or by delivery to a person of suitable age and discretion at the usual place of abode of the defendant and by mailing a copy to the last known address of the defendant. The "distinction" between this rule and the statute CPL Section 130.40 is that the legislature of this state saw fit to omit the "suitable age and discretion" provision from the statute whereas Congress included it in the Federal Statute.

For a rule of statutory construction this court looks to McKinney's Cons.Laws of N.Y., Book 1, Statutes, Section 74, which reads, in pertinent part, as follows "[I]f the legislature had intended the statute to include the matter in question, it would have been easy for them to have said so and to have expressly included it.... [T]he failure of the Legislature to include the matter within the scope of the act indicates that its exclusion was intended." McKinney's Cons. Laws of N.Y., Book 1, Statutes, Sec. 74, p. 157; See also, Pajak v. Pajak, 56 N.Y.2d 394, 452 N.Y.S.2d 381, 437 N.E.2d 1138 (1982).

Under the principle of statutory construction quoted above, I will not assume that the legislature intended to authorize a method of service it did not specifically include in the statute when it could have included it.

III.

There is also strong public policy in favor of limiting the authorized method of service in criminal action, solely to personal delivery. In my experience as a Civil Court Judge I found that substituted service lent itself to many abuses. See, Mountbatten Equities v. Meheny, N.Y.L.J., April 27, 1983, p. 13, col. 3 (Civil Ct., N.Y.Co.); see also, Leader House Association v. Reyes, N.Y.L.J., Feb. 16, 1983, p. 13, col. 3 [Civ.Ct., N.Y.Co.] [Lehner, J.]; S.P.S.G., Inc. v. Collado, 113 Misc.2d 167, 448 N.Y.S.2d 385 [Civ.Ct., N.Y.Co.] [Taylor, J.]. (Siegel, New York Practice, Sec. 71, p. 76).

Requiring in hand delivery of process reduces the possibility of false claims of service. It provides greater assurance of actual notice to the defendant. In a criminal action, where the...