People v. Koenig

234 A.D. 897 | N.Y. App. Div. | 1931

Order of the County Court of Nassau county denying defendant’s motion to direct a justice of the peace to make and file his return on appeal reversed on the law and motion granted. The defendant was convicted by a justice of the peace for a traffic violation. The district attorney’s contention that defendant can appeal only upon allowance by a court of record cannot be sustained. The defendant legally took an appeal “ as a matter of right ” under section 520 of the Code of Criminal Procedure. In so far as the appeal in this case is affected, sections 749, 751, 752 and 755 of the Code of Criminal Procedure are in conflict with section 520. As amended in 1926, the Legislature provided that section 520 “ shall supersede all other provisions of this Code, or of any other law, dealing with appeals in criminal actions and proceedings, in so far as they may be in conflict with the same.” It is clear that the Legislature must have overlooked these conflicting sections when the 1926 amendment was adopted. Lazansky, P. J., Carswell, Scudder and Davis, JJ., concur: Tompkins, J., dissents and votes for affirmance, with the following memorandum: It is my opinion that sections 751 and 752 were not repealed or superseded by section 520 of the Code of criminal Procedure, and that an appeal from a judgment of conviction in a Court of Special Sessions, outside of Albany county, can only be taken when allowed by a county judge or a justice of the Supreme Court, under the first named sections. The fact that the Legislature, by chapter 405 of the Laws of 1931, amended and re-enacted section 751 would indicate that the repeal of that section was never intended.