284 A.D. 786 | N.Y. App. Div. | 1954
The commissioner revoked petitioner’s operator’s license pursuant to the mandatory provisions of subdivision 2 (par. [c]) of section 71 of the Vehicle and Traffic Law, because petitioner had been convicted of three violations of section 56 of the Vehicle and Traffic Law (excessive speed) within a period of eighteen months. At the time the commissioner acted he had before him the certificate of a Magistrate that petitioner had been convicted on November 15, 1952, in a Court
Petitioner attacks only the first conviction on this appeal, and now asserts that it is void because petitioner was not personally present before the Magistrate and did not enter the plea of guilty “ orally ” and “ in open court ” in accordance with sections 333, 700 and 335 of the Code of Criminal Procedure. Petitioner was given a summons by a State Trooper, which required him to appear before a Magistrate. Instead of going in person petitioner wrote the Magistrate a letter resulting in a reply that the fine would be $15 for a first offense and enclosing a form. The form was properly entitled with the name of the court, “ People of the State of New York, Plaintiff, against James Gross, Defendant ”, and read:
“ You are charged with a violation of Article 5, Section 56, Paragraph 3, of the Motor Vehicle Law.
“ If you are convicted of this charge you will not only be liable to a penalty, but, in addition, your license to drive a motor vehicle, and any vehicle registration you have, may be suspended, or revoked, in accordance with the provision of the law regarding the charge involved. You have a right to adjournment for counsel, a trial by jury (if a misdemeanor), or you may plead guilty, or not guilty to the charge.
" If guilty, please indicate by signing your name to the written plea. A plea of guilty is equivalent to conviction after trial.
“ Dated: Nov. 13, 1952.
[S] James Gross ”.
The petitioner signed the statement and returned it to the Justice with his operator’s license and $15. The Justice noted the conviction on his docket in the usual form, without reference to the physical absence of petitioner, and noted the conviction and payment of the fine upon petitioner’s operator’s license and returned it to petitioner.
It is quite clear that all of this was done for the convenience of petitioner and that he acquiesced in the procedure, and respondent urges that petitioner has waived any requirement that he appear before the court personally. Undoubtedly the
The order should be affirmed, without costs.
Bebgah, J. P., Cook, Halpebu, Imbie and Zelleb, JJ., concur.
Order affirmed, without costs.