126 N.Y.S. 169 | New York Court of Special Session | 1910
Defendant herein was arrested by a police officer of the city of New York and arraigned before a city magistrate
It appears from the record that the defendant pleaded not guilty to this information on March 24, 1910. On being arraigned for trial on April 12, 1910, he appeared by counsel, was granted leave to withdraw his plea, and moved for a dismissal of the information in the action on the ground that he had not been accorded a preliminary examination before a magistrate on the charge set forth in the information ; that, not having been charged before the magistrate with unlawfully operating a motor vehicle as a “second offense” and the magistrate not having held him for this aggravated misdemeanor, the district attorney could, under the statute, only file an information charging the defendant with the particular misdemeanor which the magistrate certified he had held him to answer.
This court has already decided (People v. Zabor, 44 Misc. Rep. 633, 90 N. Y. Supp. 412) that “the defendant can only be tried on the charge for which the magistrate held him.” It is true that the Zabor Case arose under the practice which existed prior to September 1, 1904, when title 2 of part 5 of the Code of Criminal Procedure of 1903 went into effect. That title of the Code was drafted by the-justices of this court, and was intended to make provision for a formal and precise pleading in actions of which the court had jurisdiction, that pleading to be by information filed by the district attorney. Actions are now prdsecuted on such informations instead of on the often loosely drawn affidavits by which the magistrate is informed by a police officer or other complainant that a particular crime has been committed.
It must be remembered that a criminal action is begun as soon as information is laid before the magistrate, and in the case of misdemeanors the jurisdiction of this court then attaches, and the statute of limitations ceases to run. The information of the district attorney, unlike an indictment, does not initiate the action. Its filing is merely a step in the prosecution,. The magistrate still certifies that he holds the defendant to answer for a specific crime (section 208, Code Cr. Proc.), returns the papers in the case to the district attorney (section 221, supra), and this court is supposed to try the defendant for the offense for which he has been held as before the passage of the Law of 1904. The certificate of the magistrate in the case at bar states that the defendant is held to answer, “it appearing to me" by the within
This court, since its opinion in the Zabor Case, supra, and under the provisions of the existing procedure act, has placed itself on record as to the right of the district attorney to plead in an information the commission of a crime which was not the subject-matter of investigation before a magistrate. In People v. Elias (not reported), the district attorney on December 15, 1908, moved the entry of an order nunc pro tunc, extending the time for filing an information and with his moving papers handed up a draft of an information he proposed to file, provided the order were granted. The prosecution was under section 317 of the Penal Code relative to obscene pictures. The new information was prepared as supplemental to one filed in November, 1907, as to which the district attorney admitted there would be a failure of proof. The court, in a memorandum opinion handed down December 23, 1908, denied the motion, and refused to permit the filing of the information, saying in part:
“It therefore cannot be said that the second picture which is set up in- the supplementary information was before the magistrate at any time, or that the action of the magistrate was in any way based upon the possession by the defendant of this particular picture.”
The court further asserted the right of the defendant to an examination before the magistrate in regard to his action in the matter alleged against him.
The defendant herein was not accorded his right to an examination before the magistrate as to whether he was the Walter Reppin who
All concur.