12 Misc. 2d 209 | N.Y. Sup. Ct. | 1958
This is a proceeding in the nature of mandamus under article 78 of the Civil Practice Act to annul the revocation of the petitioner’s operator’s license.
The petition alleges the petitioner’s convictions of speeding on September 25, 1956, on June 3, 1957, and on March 28, 1958. These three convictions were not within a period of 18 months. However, the respondent’s answer alleges that the conceded conviction of September 25, 1956, was for speeding on September 15, 1956, that the conceded conviction of June 3, 1957, was for speeding on May 23, 1957, and that the conceded conviction of March 28, 1958, was for speeding on November 4,
It is provided in subdivision 2 of section 71 of the Vehicle and Traffic Law and more particularly in paragraph (c) thereof: 1 ‘ Such licenses must be revoked * * * where the holder is convicted * * * of a third or subsequent violation, committed within a period of eighteen months, of any provision of section fifty-six of this chapter any ordinance or regulation limiting the speed of motor vehicles and motor cycles or any provision constituted a misdemeanor by this chapter, not included in (a) or (b) hereof whether such three or more violations were repetitions of the same offense or were different offenses.” The language of the statute is clear and unmistakable. It refers to a conviction of a third violation committed (emphasis supplied) within a period of 18 months and not to a third conviction had within such period.
On the reverse side of the certificates of conviction are certifications that the warning required by section 335-a of the Code of Criminal Procedure was given. One and possibly two of these certifications are incomplete.
“ So far as section 335-a is concerned, the statute is explicit in authorizing and requiring the commissioner to look into the matter and satisfy himself that the Magistrate had complied with the statute. There is no provision in the statute for the holding of a hearing by the commissioner but he may make such inquiry as he thinks proper. He may, of course, in the first instance, accept the certification by the Magistrate that the warning had been given as ‘ presumptive evidence ’ of compliance with the statute (Vehicle and Traffic Law, § 70, subd. 11) but he may receive other proof on the subject. ’ ’ (Matter of Arcuri v. Macduff, 286 App. Div. 17, 22.)
The commissioner is not required to act solely on the basis of a certification that warning was given. Such certification is merely presumptive evidence. The commissioner, may consider any other proof (Matter of Arcuri v. Macduff, 286 App. Div. 17,
But in this case the petitioner nowhere alleges noncompliance with section 335-a. The petitioner’s papers consist of his petition and an affidavit by one of his attorneys ‘1 in support of ” his petition. It is nowhere alleged in the petition or in the affidavit that as to any one of the three convictions the warning required by section 335-a was not given. As the petitioner has failed to allege noncompliance there is no issue to be tried at Special Term.
The petition is dismissed. Submit order to Troy on three days’ notice. The motion papers will be forwarded with the signed order.