| New York Court of General Session of the Peace | Aug 20, 1914
This is an appeal from a judgment by the city magistrate convicting the defendant of disorderly conduct in that on the 30th day of June, 1914, she used threatening, abusive and'insulting behavior with intent to provoke a breach of the peace and used indecent and insulting language to the complainant.
It appears that the complaining witness, a police officer, had just placed the defendant’s sister under arrest at an early hour of the morning for soliciting; that thereupon the defendant accused him of being drunk and used profane language. The defendant admitted that she called the officer a liar upon his arresting defendant’s sister. Whether the arrest of the defendant’s sister was proper or not, the defendant had no right to interfere with the officer, and there would be no difficulty in affirming the judgment save for the fact that the magistrate
This action of the magistrate on the one hand under section 188 of the Code of Criminal Procedure and his failure to act under section 81 of the Inferior Criminal Courts Act indicates that some confusion has arisen as to the notification to be given to a defendant in cases where the magistrates have summary jurisdiction. The notification required by section 188 of the Code of Criminal Procedure has no application to cases where the magistrates have the summary power of conviction, and is not required in such cases, although, as stated in the opinions of the judges of this court, it is considered the better practice to give such notification. Such notification is required only in cases of preliminary examination of the defendant held for the purpose of discharging him or holding him to answer. On the other hand, the notification required by section 81 of the Inferior Criminal Courts Act is required to be given in all cases where the magistrates have summary jurisdiction to convict and impose sentence, but is not required where a preliminary examination of the defendant is being had.
The plain purpose of the Legislature was that in cases where the magistrates have summary jurisdiction the defendant should not be put to trial or sentenced until notified of his right to communicate with his friends and relatives and afforded an opportunity so to do. As in this case the defendant was both put to trial and sentenced without being afforded rights granted by the statute, it follows that the judgment of conviction should be reversed and a new trial granted.