129 N.Y.S. 1011 | New York County Courts | 1911
In the affidavit of the defendant upon which the appeal to this court was allowed, various irregularities concerning the proceedings before the justice of the peace are alleged; and, in an affidavit made by the defendant’s attorney, submitted upon argument of this appeal, it is stated that the said justice admitted to the deponent that the information had not been read to the defendant, either by said justice or by any one under his direction, and that neither the said information nor the constable’s affidavit herein was drawn up, signed and sworn to until after the defendant had been fined and left the court’s presence, and the case disposed of. Section 763 of the Code of Criminal Procedure provides that the appeal must be heard upon the original return. The return upon its face does not show any of the irregularities or omissions complained of. On the contrary, the return by its formal recitals, as far as they go, shows due compliance with the provisions of law applicable to proceedings in courts of special sessions upon the arraignment and trial of a defendant. These matters should not be corrected upon affidavits which would falsify the return. If the return be defective, a further or amended return may be ordered. Code Crim. Pro., § 758. The proper course is to procure a correction of the return, so that the appeal may be decided upon the record in the court below and not upon affidavits which impeach the correctness of 'the return. Code Crim. Pro., § 763; People v. Solomon, 57 Misc. Rep. 288; People, etc. v. Carnrick, 39 N. Y. St. Repr. 593. This appeal will stand over until the 18th of February, 1911. The defendant may, in the meantime, make a motion, upon notice to the justice and district attorney, for an order compelling a further or amended return, so that all the questions raised by the defendant upon this appeal may receive due consideration and be disposed of upon a full and complete record of the proceedings in the court below.
Ordered accordingly.