138 Misc. 771 | New York Court of Special Session | 1931
We are required in ruling upon defendant’s motion for an acquittal made at the close of the trial of this action, to determine whether this prosecution is barred by the lapse of the statutory period of two years after the commission of the crime alleged in the information filed by the district attorney in this court pursuant to the provisions of the Code of Criminal Procedure.
All crimes must be prosecuted by indictment, except, among other cases, such crimes as are, in special statutes, specified as cognizable by Courts of Special Sessions in the city of New York (Code Crim. Proc. § 4). This court has exclusive jurisdiction of all misdemeanors except libel, which is specifically excepted in the statute, and they must be prosecuted under and pursuant to an information filed by the district attorney where there has been a holding by a magistrate upon a complaint before him, or filed by direction of a grand jury with the approval of the court for which the grand jury was drawn. This information shall be signed by the district attorney of the county wherein the action was begun (Code Crim. Proc. § 222); and it takes the place of an indictment and confers jurisdiction upon the Court of Special Sessions to hear and determine the misdemeanor.
Upon the charge hereinafter set forth the defendant entered upon the minutes of this court a plea of not guilty; and, as- provided in section 339 of the Code of Criminal Procedure, it is proper for him under the general issue to urge and for this court to consider the defense of the Statute of Limitations as a legal bar here. (People v. Durrin, 2 N. Y. Cr. 328.) (See, also, People v. Blake, 121 App. Div. 613, 617.)
The Attorney-General, on behalf of the People, has proven that on the 19th day of January, 1928, the defendant had in his employ one Ernest Codden, a claimant before the Department of Labor, State of New York, who sustained injuries' in the course of his employment for which an award was made to him in the sum of $3,918.50, and that the defendant then carried no workmen’s compensation insurance covering such employment as required by section 50 of the Workmen’s Compensation Law. Such failure is punishable as a misdemeanor. These facts are not disputed.
A prosecution for a misdemeanor must be commenced within two years after its commission. (Code Crim. Proc. § 142.) The commencement of such a prosecution is defined to be the laying of an information, also known as a complaint, before a magistrate
The complaint laid before the magistrate on December 6, 1928, was subscribed by Rosé Higgins, an investigator of the Department of Labor. According to her ■ testimony before us, which we think is conclusive as to when she first signed her affidavit and before whom it was sworn to, she states that the oath was administered by Magistrate Ale Andrews, and that she did then swear to the truth' of such ■ complaint. This-strengthens the presumption in favor of the People that the magistrate proceeded regularly (People v. Fisher, 223 N. Y. 459, 460), notwithstanding that the certificate of the jurat, although dated December 6, 1929, was not subscribed and attested by bird. On a later date, January 31, 1930, Magistrate Earl Smith, succeeding the former by assignment, observed • ■this omission and signed the verification of said complaint.
? The form and sufficiency of the averments of this complaint have not been attacked, except in the matter of the verification. This formal accusation against the defendant laid the foundation for and conferred upon the magistrate the necessary jurisdiction of this crime and of the defendant then before him pursuant to a process that had taken the place of a warrant; besides, the defend
In my judgment this constitutes a substantial compliance with the requirements of the provisions of the Code of Criminal Procedure, and the omission by the magistrate on December 6, 1929, to subscribe the jurat was not a serious error prejudicial to the legal rights of the offender, such as would vitiate and nullify the proceedings before him. (Code Crim. Proc. § 684.) (See, also, People v. Portman, decided Feb. 24, 1930, by Walling, J., Court of Special Sessions.) Even the omission of the district attorney’s name from an indictment properly prosecuted has been regarded as an immaterial error or defect which is not jurisdictional. (People v. Foster, 60 Misc. 3.) (See, also, People ex rel. Wilson v. Warden, 151 App. Div. 108, 109; People ex rel. Lindgren v. McGuire, Id. 413.) Hence, we have the commencement of a prosecution before a magistrate within two years of the date of the commission of the crime, resulting in a holding of defendant for trial in the Court of Special Sessions, the transmission of the papers as required by section 221 of the Code of Criminal Procedure, and the filing of an information by the district attorney.
Defendant’s counsel contends that sections 142 and 144 of the Code of Criminal Procedure, supra, as amended by Laws of 1929, chapter 246, are not controlling here, on the ground that they had not been enacted and were not in force and effect when this crime was committed. He insists that this court apply, instead, the prior statutes in effect on January 19, 1928, which required that an indictment must be filed by the grand jury within the two-year period in the Court of Special Sessions, otherwise the action is outlawed; and that inasmuch as that was not done, the court never obtained jurisdiction and the defendant is, therefore, entitled to be discharged.
Obviously, these changes neither extended nor shortened the statutory limitation of two years. They merely elaborated the method or procedure by which to arrest or interfere with the running of the period. All such laws must be given a reasonable construction “ in furtherance of their manifest object.”
It is a general rule that Statutes of Limitation do not create vested or substantive rights; they deal merely with a remedy (House v. Carr, 185 N. Y. 453) and are available only as a defense. (Kelly Asphalt B. Co. v. Brooklyn A. A. Co., 190 App. Div. 750, 757, 758.)
The defendant relies upon the case of People v. Lord (12 Hun, 282). There the legislative act of May 28, 1873, extended the statutory limitation period within which to prosecute Lord from three to five years for misconduct while he was a member of the State Assembly. The law in effect when that offense was committed required the finding and filing of an indictment within three years after its commission. The indictment charged the offense on February 1, 1871, and it was filed on September 25, 1875. The Lord case presents, I think, quite a different situation from the question before us. Speaking with reference to statutes of limitation in criminal actions, Mxjllin, P. J., writing at page 288 in the Lord Case (supra), said: “ Here the State is the grantor surrendering, by act of grace, its right to prosecute, and ordering the offense to be no longer the subject of prosecution.” And he adds: “ The statute is not a process to be strictly and grudgingly applied, but an amity, declaring that after a pertain time oblivion shall be cast
The purpose of the statute has been in every respect fully accomplished. After all, the important thing, in the light of the circumstances here, is the proper exercise of jurisdiction by a magistrate over the matter and the person within the statutory period, proceedings in which the defendant acquiesced; and he should not be allowed here for the first time to complain that there was any irregularity before the magistrate that is not jurisdictional. (See Nowak v. Waller, 10 N. Y. Supp. 199; affd., 132 N. Y. 590.)
I advise that the defendant’s plea be overruled and his motion denied, and the defendant should be adjudged guilty as charged.
All concur; present, Walling, P. J., Fees chi and Dibenzo, JJ.
Ordered accordingly.