45 Misc. 2d 212 | N.Y. Sup. Ct. | 1965
This is a proceeding under article 78 of the CPLR in the nature of an application for a writ of prohibition enjoining and restraining the District Court of the County of Nassau and all of its Judges, and the District Attorney of Nassau County, from taking any further proceedings in the District Court of Nassau County on an information filed in that court, charging the petitioner with a violation of subdivision 2 of section 1192 of the Vehicle and Traffic Law of the State of New York, in that he did operate an automobile on Forest Avenue, a public highway in the City of Grlen Cove, and within the County of Nassau, while in an intoxicated condition as provided in the section. The charge is a misdemeanor.
The petition alleges that while acting as a patrolman in the City of Grlen Cove on December 26, 1964, and while operating a motor patrol, his car was involved in an accident. That shortly thereafter he was taken into custody at the direction of the Chief of Police of the City of Grlen Cove, was subjected to a blood test for the purpose of determining his sobriety, and as a result thereof suspended from the force. He states that he was released from custody that night although he had made demand to be arraigned in the City of Grlen Cove before the City Judge sitting as a Court of Special Sessions. He complains that on the following Thursday an information was filed by the police authorities in the First District Court of Nassau County and a warrant issued for his arrest on the charge above referred to. Upon being taken into custody upon such warrant, he demanded again to be arraigned in the City Court of the City of Grlen Cove. The arresting officers, in compliance with the terms of the warrant, arraigned him in the District Court of Nassau County. He claims that these actions were in violation of his constitutional rights. In support of his position the petitioner alleges that the District Court of the County of Nassau is illegally constituted and is contrary to section 16 of article VI of the Constitution of the State of New York, in that such article (§ 16, subd. b) provides that “ No law establishing the district court for an entire county shall become effective unless approved at a general election ”, and that there was no such approval in connection with the establishment of the District Court in the County of Nassau as now established and constituted.
Either the City Court of the City of Glen Cove or the District Court of the County of Nassau had original jurisdiction to hear and determine the charge of a violation of subdivision 2 of section 1192 of the Vehicle and Traffic Law. No information was filed in the City Court of the City of Glen Cove, so that no prosecution was commenced in that court. An information was filed in the District Court of the County of Nassau and prosecution commenced in that court. The arrest of a defendant does not commence the prosecution (Code Grim. Pro., § 144). Thus, the question as to whether an arrest of the petitioner was actually made on the night of the accident becomes academic. The petitioner was on duty as a patrolman at the time of the occurrence and was subject to the commands of the Commissioner of Police and his other commanding officers. If on that night those officers decided to charge him with the crime and hold him in custody for that purpose, then he would have been entitled to an immediate arraignment on the charge before the nearest and most accessible Magistrate. However, those officers did not elect to charge him with the crime on that night but suspended him from duty and released him from custody. This was their prerogative. It appears from the papers submitted that the District Court of the County of Nassau has been given jurisdiction to hear and determine the only charge made against the petitioner. The petition is dismissed.