306 N.Y. 375 | NY | 1954
After a trial before the Court of- Special Sessions of the Town of Manlius, Onondaga County, a Justice of the Peace found defendant guilty on May 7, 1953, of a violation of subdivision 1 of section 56 of the Vehicle and Traffic Law (speeding). On May 19, 1953, defendant served a notice of appeal on the Justice of the Peace, the District Attorney and the County Clerk of Onondaga County.
Counsel for defendant admitted in the County Court that there had been no compliance with section 751, but sought leave to cure the defect pursuant to section 524-a of the Code of Criminal Procedure, which provides: £ ‘ Where an appellant, seasonably and in good faith, serves a notice of appeal, either upon the clerk with whom the judgment-roll is filed or upon the district attorney of the county in which the judgment was rendered, but omits through mistake or inadvertence or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal or to stay the execution of the judgment appealed from; the court, in or to which the appeal is taken, upon proof by affidavit of the facts, may permit, in its discretion, the omission to be supplied, or an amendment to be made, upon such terms as justice requires.”
The County Court denied defendant’s application to supply the omitted affidavit of errors under section 524-a and dismissed the appeal. The narrow question presented to us, then, is whether a County Court has the power, pursuant to section 524-a, to relieve a defendant from his failure to comply with section 751 of the code. We think not.
Section 524-a is contained in Part IV of the code, which is entitled ££ Of the Proceedings in Criminal Actions Prosecuted
An additional consideration leading to the conclusion that section 524-a is inapplicable to an appeal taken pursuant to section 751 is the fact that section 524-a expressly relates to the correction of errors in a case where an appeal is necessarily perfected by means of a notice of appeal. The latter section does not relate, expressly or inferentially, to an appeal required to be taken in any manner other than by notice of appeal. Section 751, however, requires a defendant to take his appeal from a Court of Special Sessions by the filing and service of an affidavit of errors and not by the filing and service of a notice of appeal. It is patent, therefore, that section 524-a can have no application to an appeal taken pursuant to section 751.
To hold otherwise would only create confusion where the statute is clear, namely, that appeals from Courts of Special Sessions must be taken within thirty days by the very simple method of filing an affidavit of errors. Here there was no compliance whatever with the applicable statute.
We find no merit in defendant’s argument that the People waived the right to demand an affidavit of errors (cf. People v. Belcher, 299 N. Y. 321).
The judgment of the County Court should be affirmed.
Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Van Vooehis, JJ., concur.
Judgment affirmed.