People v. Vlasto
| Decision Date | 24 May 1974 |
| Citation | 355 N.Y.S.2d 983,78 Misc.2d 419 |
| Parties | The PEOPLE of the State of New York v. Solon VLASTO, Defendant. |
| Court | New York City Court |
John J. Sheehan, New York City, for complainant.
Kenneth Kaplan, New York City, for defendant; Louis J. Lefkowitz, Atty. Gen. of State of New York, by Jerome M. Solomon, Asst. Atty. Gen., Richard H. Kuh, Dist. Atty. of New York County, by Jeffrey Battan, Asst. Dist. Atty., appearing specially.
The defendant, the former owner and publisher of a Greek daily newspaper known as the 'Atlantis', is charged in an information filed by a former employee with violation of § 198--c of the Labor Law, a misdemeanor.
Following a number of adjournments, the waiver of trial by jury, and the substitution of the attorney for the defendant, this matter was set down for trial in Summons Part 2.
Prior to that date the present motion to dismiss the accusatory instrument was filed, returnable on the same day, based upon two grounds.
The initial ground for dismissal can be summarily disposed of. The defendant contends that the accusatory instrument is a misdemeanor complaint and therefore may not serve as a basis for prosecution without defendant's consent (Criminal Procedure Law, §§ 1.20, subd. 7; 100.10, subd. 4). Concededly, an 'information' does not require such consent.
The defendant's principal argument that this is a misdemeanor complaint and not an information is that the instrument has an 'X' mark placed beside the words 'Misdemeanor Complaint'. The court takes judicial notice of the fact that this marking was typed in by a clerk of this court who prepared the complaint. It is true that both an 'information' (CPL, § 100.10, subd. 1) and a 'misdemeanor complaint' (CPL, § 100.10, subd. 4) are defined as 'a verified written accusation by a person, filed with a local criminal court, charging one or more other persons with the commission of one or more offenses * * * none of which is a felony.' The distinction, however, between the two instruments is apparent from a reading of further sections of the Criminal Procedure Law. While both instruments may include factual allegations based either on personal knowledge or upon information and belief (CPL, § 100.15, subd. 3), an 'information' is sufficient on its face only if the non-hearsay allegations 'establish, if true, every element of the offense charged and the defendant's commission thereof.' (CPL, § 100.40, subd. 1(c)) Since all the allegations are non-hearsay, I deem the instrument to be an 'information.' The ministerial act of a clerk, in erroneously marking the instrument as a 'misdemeanor complaint', is not decisive as to the nature of this instrument (cf. CPL, § 170.65). The motion to dismiss on this ground is accordingly denied.
Defendant's principal argument for dismissal of this criminal proceeding is that the defendant is being 'prosecuted for the commission of a crime by private counsel' and not by the District Attorney.
On each of the days this matter appeared on the calendar of Part S.P.2, the attorney for the complainant appeared ready to present the case. The District Attorney did not appear, and the court takes judicial notice of the fact that the District Attorney never appears in the Summons Parts of the Criminal Court in any of the counties of New York.
The issue of the right of private counsel to represent the complainant in a criminal case having been raised, the court directed the service of all papers in this proceeding on the District Attorney and the Attorney General of the State of New York.
There are no reported cases dealing with the issue of the right of any person other than the District Attorney or the Attorney General of the State of New York to prosecute a criminal proceeding subsequent to the enactment of the Criminal Procedure Law (May 20, 1970).
Let us first examine the law as it existed prior to the effective date of the Criminal Procedure Law.
At common law the Attorney General was the chief law officer of the sovereign, who was charged with the duties of securing the peace and safety of the people through the prosecution of all persons charged with criminal offenses. The first Attorney General of New York State was appointed by the Constitutional Convention of 1777. In 1976 the legislature passed an act entitled 'An act making provision for the more due and convenient conducting public prosecutions, at the courts of oyer and terminer and gaol delivery, and general sessions of the peace.' The act created the offices of assistant attorney generals outside the City of New York with the duty to attend criminal courts and to conduct all prosecutions for crimes and offenses cognizable in the supreme courts (Matter of Lewis v. Carter, 220 N.Y. 8, 13, 115 N.E. 19, 20 (1917)).
By statute, in 1801, the office of District Attorney was created, attaching to the office the duties of the assistant attorney general. This act specifically provided that, amongst others, a judge of the supreme court may require the Attorney General to attend the court 'and it shall be the duty of the attorney general to attend accordingly, and thereupon to conduct at such court all public prosecutions' and the District Attorney was required to aid in conducting the prosecutions. (2 Lincoln's Const. History of New York, pp. 526--531, cited in Matter of Lewis v. Carter, supra, p. 14, 115 N.E. p. 20.)
In 1818, the act of 1801 was repealed, and the new statute provided for the appointment of a District Attorney in each county and required him 'to conduct all prosecutions for crimes and offenses' cognizable in the then courts of Oyer and Terminer and general sessions. (Laws of 1818, chapter 283.) The court in Matter of Lewis v. Carter pointed out that this language was transmuted into the County Law of 1909, chapter 16, section 200(4) (supra, pp. 14, 15, 115 N.E. p. 20). The identical language of the aforesaid statute appears in present section 700, subdivision 1 of the County Law, enacted in 1950, which provides as follows:
Simultaneously, section 927 of the County Law was enacted providing in almost identical language that 'It shall be the duty of the district attorney of the respective counties of New York, Bronx, Kings, Queens and Richmond To prosecute all crimes and offenses cognizable by the courts of the county * * *' (L.1950, ch. 691).
A criminal action is prosecuted in the name of the People of the State of New York against the designated person charged with a crime (See Criminal Procedure Law, § 1.20(1); former Code of Criminal Procedure, § 6; General Construction Law, § 18--a). As Mr. Justice Thomas Dickens said in People v. Rodriguez, 13 Misc.2d 1004, 1006, 178 N.Y.S.2d 993 (1958), 'the phrase 'People of the State of New York' * * * was signally intended as the form of expression to symbolize the sovereignty of the State of New York in this criminal prosecution brought in its name.'
It thus appears that 'The right of the people of the state to be represented by the district attorney or attorney general in all criminal prosecutions instituted in their names is one inherent in those offices.' (People ex rel. Gardiner v. Olmstead, 25 Misc. 346, 348, 55 N.Y.S. 472, 473 ). The court in that case went on to say that the People are 'entitled to be represented at every stage thereof either by the district attorney for the county or attorney general for the state, each of whom is a constitutional prosecuting officer for the people.' (supra, at p. 349, 55 N.Y.S. at p. 474.)
Our highest court in interpreting the 1818 statute specifically stated that the 'responsibility is upon him (the district attorney) to conduct All prosecutions for crimes triable in his county' and that this 'duty to conduct prosecutions may fairly be construed to embrace whatever is properly essential to bring a criminal to trial, as well as the proceedings of the trial.' (People ex rel. Gardenier v. Supervisors, 134 N.Y. 1, 5, 6, 31 N.E. 322, 324 (1892).) (emphasis added)
For many decades, however, subsequent to the enactment of the cited County Laws, the practice grew for other officials and individual complainants or their attorneys to prosecute petty crimes and offenses, particularly in the Police Courts, Village Courts, Magistrate Courts, and Courts of Special Sessions. In a number of lower court decisions the courts recognized the practical difficulties, if not the manifest impossibility, of the District Attorney's prosecuting all such crimes. (See People v. Wyner, 207 Misc. 673, 142 N.Y.S.2d 393 (1955); Matter of Coleman v. Lee, 1 Misc.2d 685, 148 N.Y.S.2d 753 (1956); People v. Montgomery, 7 Misc.2d 294, 166 N.Y.S.2d 455 (1957).) The Attorney General concluded on the bases of the aforesaid cited authorities that 'it cannot be said that (the District Attorney) must prosecute every crime committed in his county, cognizable by courts of special sessions; that it is recognized that it is physically impossible for him to do so; that it is within his discretion to determine which crimes require prosecution by him and which do not, in the light of the extent of his facilities and size of his staff; That particularly where complaints are instituted by private persons, the District Attorney historically and traditionally need not and does not prosecute such crimes, but that the complainant may do so himself or by an attorney retained by him.' (1958 Atty.Gen. Opinion 117, 119.) While tradition may have supported this opinion, the cited authorities do not. All of them involved prosecution by public officials. See also People v. Scharer, 185 Misc. 616, 58 N.Y.S.2d 87 (1945); Matter of Johnson v. Boldman, 24 Msc.2d 592, 203...
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