81 Misc. 2d 202 | New York County Courts | 1975
This is a proceeding pursuant to CPL 170.25 seeking the removal of a charge from the Town Court of Dryden alleging the misdemeanor crime of a violation of section 1192 of the Vehicle and Traffic Law and requesting that said charge be presented by indictment and tried in a superior court.
The defendant contends that the Justice of the Town Court is not an attorney at law and that trial before the Town
Said CPL 170.25 was derived from section 57 of the former Code of Criminal Procedure. Although the language is not the same, there seems to be no reason why the question of removal should not hinge on a consideration of the same criteria first set down in People v Rosenberg (59 Misc 342. [see People v Banaszak, 76 Misc 2d 397]). These criteria are: (1) the case presents intricate and complicated questions of fact, rendering a jury trial proper; (2) it presents difficult questions of law; (3) a property right is involved; (4) a decision may be far-reaching in its effects and will become a precedent; (5) the case is of exceptional character and that the defendant, for some special reason, cannot have a fair trial in lower court.
It would appear that this defendant relies on the criteria numbered (1), (2), and (3) above. The case at bar does not present any far-reaching results that would present or become a precedent as required by the criteria set forth in paragraph number (4) and there appears that no "special reason”, as set forth in criteria number (5), was claimed by the defendant that might result in the defendant not receiving a fair trial except the conclusory statements in his moving papers that the said Town Justice was antagonistic. The Justice asserts in his affidavit that his handling of the matter up to the time of this motion was routine and indicates there is no basis for the claim that he is hostile or antagonistic towards this defendant. At any rate, the question is now academic and is of no significance whatsoever since the Town Justice in question is no longer in office, a different Town Justice having been elected and now presiding.
In regard to the criteria set forth above numbered (1) and (2), the Town Court of Dryden as a local criminal court has trial jurisdiction over the defendant’s alleged offense, subject
In regard to the criteria set forth above numbered (3), the Court of Appeals has held that the possession of a license to drive is a vested property right (Matter of Moore v Macduff, 309 NY 35). On the basis of that decision one court, permitting removal, said it seemed reasonable that all applications which involve mandatory revocation of licenses upon conviction, should be granted (People v Robbins, 26 Misc 2d 963). In the Robbins case the court would apply the property right theory to any holder of a driver’s license, whether or not its possession was essential to the defendant’s livelihood. In other cases the courts have said the mere existence of a property right, standing alone, is not enough to warrant removal (People v Stein, 236 NYS2d 703; People v Maligno, 49 Misc 2d 1009), but both of those cases involved liquor licenses. It appears that in the case of People v McAnarney (supra) which was concerned with a self-employed business man with "a definite need to drive,” that the removal of the trial would have been granted on a property right basis alone. However, that case also involved a more important factor not present here — the accidental destruction of a blood sample before it was analyzed.
A defendant’s license to drive is, of course, revocable upon
Just very recently it was reported in a Post Standard newspaper article of March 12, 1975, that State Supreme Court Justice Richard N. Donovan ruled there was nothing unconstitutional about our State laws allowing nonlawyers to serve as Town and Village Justices. Justice Donovan held that section 20 of article 6 of the New York State Constitution concerning the qualifications of Town Justices, section 31 of the Town Law and subdivision (a) of Section 105 of the Uniform Justice Court Act, specifying completion of certain training courses by Town Justices, complied with the due process provisions of the Constitution of the United States of America and adequately provided for sufficient training of nonlawyers to serve as Town Justices.