24 Misc. 2d 864 | N.Y. Sup. Ct. | 1960
Petitioner applies for an order, in the nature of prohibition, restraining respondents “ from entertaining jurisdiction ” of a charge of disorderly conduct as set forth in a purported summons served upon petitioner by one Irving Domroe, an employee of the Department of Sanitation of the City of New York.
On December 29, 1959 (erroneously set forth in the summons as 1960), the petitioner was served with a summons charging him with a violation of the Sanitary Code. The man who served the summons ivas another employee of the Department of Sanitation who was accompanied by Domroe. Both of these men at that time, although concededly employees of the Department of Sanitation of the City of New York, were dressed in gray uniforms similar to those worn by some of the police officers of the city, and each of them wore a badge affixed to the uniform which indicated that they were special patrolmen. The summons for the Sanitary Code violation which was served on petitioner was taken from a book of summonses in customary use in the City of New York by police officers, and had been issued to the said “ special patrolmen ” through their department by the Board of City Magistrates of the City of New York under the authority granted by subdivision h of section 116 of the New York City Criminal Courts Act which permits such summonses to be issued “ to members of the police force of and all other peace officers in the city of New York ”.
The service of this summons upon petitioner resulted in a dispute, which caused Domroe to arrest petitioner on a charge of disorderly conduct. Petitioner was taken to the police station house where after hearing the facts, the station house desk officer suggested that a summons be issued instead of the arrest. Accordingly, Domroe, acting as a patrolman attached to the Sanitation Department of the City of New York, issued summons No. F528872 which originated the present proceeding, charging petitioner Kenler with the offense of disorderly conduct.
On the return date of the summons, Kenler was required to be in court. Conceding jurisdiction over his person on the Sanitary Code violation, he pleaded guilty and paid the fine imposed upon him by the City Magistrate. A notice of appearance was filed by an attorney who appeared for him on the disorderly conduct charge, and the jurisdiction of the court to entertain said charge was then promptly challenged. In effect, defendant appeared specially. The matter was thereupon
It appears without question that the conclusion reached by Magistrate Veteano in his return, to the effect that the matter is still pending before Judge Matzkiit (the Magistrate who directed the exchange of briefs), is an erroneous one. Judge Matzkih divested himself of jurisdiction when he adjourned the case to a later date, knowing that another Magistrate would be presiding. The only way in which he could have retained jurisdiction was by reserving decision on the matter or directing that it be continued before him. But when he adjourned the case in the manner in which he did, he lost all jurisdiction over it.
In the present proceeding, in which he seeks to restrain the Magistrate’s Court from proceeding with the present charge of disorderly conduct pending against him, petitioner raises several serious questions of law and procedure, and they will be separately discussed. His first contention is that Domroe is not a special patrolman, but merely an employee of the Department of Sanitation of the City of New York; that he may not be and never was effectively appointed a special patrolman or a peace officer; and that in any event, neither the prevention nor detection of disorderly conduct or enforcement of the laws pertaining thereto, come within the scope of the functions or purposes of the Department of Sanitation. He urges that by reason thereof, the Board of City Magistrates of the City of New York, acting through the Police Department, or in any other manner, lacked the authority to issue a blank book of summonses to the said Domroe for completion and service thereof; and that Domroe lacked the authority to issue such a summons in the name of the Chief Magistrate of the City of New York.
In opposition to petitioner’s contentions, respondents in their return, submit a copy of the requests by the then Commissioner of the Department of Sanitation of the City of New York for the appointment of Domroe, amongst others, as a special patrolman, and the order dated February 24, 1956 of the Police Commissioner of the City .of New York, wherein in subdivision 3 thereof, it is indicated that the said Domroe was appointed as a special patrolman as of February 9, 1956. Respondents also urge that it is of little moment whether the summons was properly issued, contending that once petitioner was physically present before the City Magistrate, the complaint might be made against him by any citizen, and when presented to the City Magistrate, he had jurisdiction over the defendant. But the
In People v. Haber (20 Misc 2d 272) the court pointed out that the purpose of a summons is in lieu of arrest to save a citizen the embarrassment of arrest for a minor law infraction. (People v. Kempner, 95 N. Y. S. 2d 425.) In a concurring’ opinion, Gassman, J., after pointing out (20 Misc 2d 274) that ‘ ‘ ‘ Local, inferior courts have only such jurisdiction as is expressly conferred by statute ’ ” went on to say (p. 275):
“It is true that if the Magistrate has jurisdiction of the subject matter and the defendant is physically before him, the manner in which the arrest was made is immaterial in determining the court’s jurisdiction. (People v. Banner, 5 Misc 2d 355, 358; People v. McDonald, 8 Misc 2d 50.) It is also true that it is no defense to a criminal prosecution that a defendant was illegally brought within the jurisdiction of the court, where the court had jurisdiction of the subject matter (People v. Di Leo, 194 App. Div. 793, 794; People v. Eberspacher, 79 Hun 410; People v. Jeratino, 62 Misc. 587). However, all those cases involved situations where the defendant was béfore the court on a warrant of arrest and not as the result of the issuance of a summons, as in this case. The defendant’s objection to the jurisdiction of the court cannot be deemed waived by his going to trial on the merits, particularly after the assurance given to him by the court that ‘ if your contention is right, then no matter what happens at the trial, it would have no effect ’.
‘ ‘ The Magistrate, under subdivision g of section 116 of the New York City Criminal Courts Act, having the defendant physically before him, could have issued a warrant for the defendant’s arrest. However, he did not do that, but proceeded with the trial under the summons. . Thus the only question before us is whether the court below acquired jurisdiction of the defend
Taking up then the question of whether Domroe is in fact a special patrolman as indicated in the orders issued by the Police Commissioner of the City of New York under date of February 24,1956, the court has come to the conclusion that his attempted appointment as such did not effectively constitute him a special patrolman. Subdivision c of section 434a-7.0 of the Administrative Code of the City of New York provides that: ‘( The commissioner, whenever expedient, may on the application of any person or persons, corporation or corporations, showing the necessity therefor, appoint and swear any number of special patrolmen to do special duty”. It is under the authority of this section that the appointment of Domroe was made, and it is obvious that the section was never intended to apply to an employee of the City of New York. The words ‘ ‘ person or persons, corporation or corporations ’ ’ referred to in the preceding section, are obviously private persons and private corporations. This appears clearly from the statement-contained in the section that 1 ‘ the person or persons, corporation or corporations ’ ’, who make the ‘ ‘ application ’ ’, must pay “ in advance, such special patrolmen for their services ”.
It is further provided as a condition of such appointment, that the proposed special patrolman shall sign “ an agreement in writing releasing and waiving all claim whatever against the department and the city for pay, salary or compensation for their services and for all expenses connected therewith ”. The “ department ” referred to in this instance is the Police Department, and it is obvious upon its face, that no city employee may be appointed as a special patrolman, since he may not be asked to waive all compensation for his services as such employee. Apparently recognizing that the clear provisions of the Administrative Code (supra) did not apply to city employees, the Police Commissioner promulgated section 141.1 of the Police Department Regulations, and that section reads as follows: 1 ‘ 141.1 Appointment shall be made only to financial institutions, transportation corporations, public departments and public institutions (including hospitals, libraries, corrective and charitable institutions, etc.), unless otherwise directed by the Police Commissioner ”.
Almost verbatim and to the same effect is General Order No. 19, section 1 thereof (Exhibit C attached to return) made by the Police Commissioner under date of May 1, 1958. While such general order contains the additional language “ unless other
Subdivision h of section 116 of the New York City Criminal Courts Act provides as follows: “ h. The board of city magistrates is empowered and directed to prepare and issue summons in blank, attested in the name of its chief city magistrate, to members of the police force of and all other peace officers in the city of New York for the purposes stated in the regulations relative thereto adopted by the board of city magistrates, which summons, when filled in and countersigned by such officer, and served upon the person to whom addressed, shall have the same force and effect and shall be obeyed as implicitly, subject to the same penalties for disregard thereof as if individually and directly issued by the chief city magistrate attesting the same ’ \ (Emphasis supplied.)
Section 143.2 of the Police Department Regulations provides: ‘ ‘ A special patrolman shall: * * * d. Perform duty only for the person or corporation by whom he is employed and only at the place designated in the application.”
Under no interpretation of the foregoing, may it be deemed that Domroe had the power to issue a summons for disorderly conduct. In City of Rochester v. Lindner (167 Misc. 790) the question before the court was whether defendant, a game protector of the Department of Conservation of the State, was subject to a speed ordinance of the City of Rochester while he was driving his automobile in furtherance of his duty as such game protector. Defendant contended that he was a peace officer and, therefore, not subject to said ordinance. In overruling his contention, the court pointed out (p. 791) that even assuming that he might be considered as such, “it does not confer the right to violate regulatory measures unrelated to conservation.”
In opposition to the present proceeding, respondents argue that petitioner has a remedy by way of appeal from any adverse judgment rendered against him in the Magistrate’s Court. Even if that be so, petitioner need not subject himself to possible arrest and imprisonment before having his rights determined. He may proceed by way of a proceeding for prohibition as he has done here. (Matter of Hogan v. Court of General Sessions, 296 N. Y. 1; Matter of Scott v. McCaffrey, 12 Misc 2d 671; Matter of Kraemer v. County Court, 7 AD 2d 644, affd. 6 N Y 2d 363 [1959]. See, also, Matter of Kingsview Homes v. Pette, 9 A D 2d 782; Matter of Marshall v. Kevmedy, 17 Misc 2d 985; Matter of Silfa v. Kennedy, 5 Misc 2d 735, affd. 3 A D 2d 818, affd. 3 N Y 2d 734; Matter of Clark v. Flynn, 9 A D 2d 249.)
The power of a special patrolman may be exercised only as provided for by statute. Otherwise, there would be little neces
On the basis of all of the foregoing, the court concludes that Domroe was not a special patrolman or a peace officer; that he had no authority to serve the summons here under attack; that the appearance in court of petitioner and the attempt to charge him on the basis of his response to the summons issued herein, are of no effect; that the court never acquired jurisdiction over petitioner and that the proceedings pending against him in the Magistrates’ Court are in all respects null and void. Accordingly, the petition is granted as prayed for.