Opinion
December 12, 1968
William N. Ellison, District Attorney of Schuyler County, for plaintiff.
Machson Gellman ( Emanuel Gellman of counsel), for defendant.
The defendant is charged with unlawfully dealing in fireworks in violation of subdivision 2 of section 270.00 Penal of the Penal Law. At a pretrial conference a motion was made by the People to amend the information. The amendment requested is that the information now directed to "Walter W. Dunbar, Justice of the Peace of the Town of Dix" be stricken and that the words "Walter W. Dunbar, Town Justice of the Town of Dix" be inserted therein. It is also moved that the printed words "Village Justice" that are found on the information form directly under the signature of the Justice be stricken and leave the printed words "Town Justice".
As to the striking of the words "Village Justice", this court will grant the motion of the People.
As to the other, this court has already ruled in the instant case that there is no loss of jurisdiction merely because the arresting officer referred to the court as "Walter W. Dunbar, Justice of the Peace of the Town of Dix". The Code of Criminal Procedure, which was in fact amended and became effective on the same date as the revised Justice Court Act (now known as the Uniform Justice Court Act [UJCA]), still refers to Justices of the town courts as "justices of the peace". (Code Crim. Pro., § 60, as amd. by L. 1967, ch. 681, § 13, eff. Sept. 1, 1967; also, Code Crim. Pro., § 147, "Who are magistrates".) In the Laws of 1968 the Legislature saw fit to amend the Domestic Relations Law by chapter 723 which amended subdivision 3 of section 11 to read "town or city justice" in place of "justice of the peace" but again did not amend the wording of the Code of Criminal Procedure. The UJCA (§ 2104, subd. [b]) states: "A reference in any general or special statute, law, local law, ordinance, resolution, rule, regulation or order: * * * (b) to a justice of the peace of a town shall be deemed a reference to the town court [emphasis added] as used in this act or the justice of such town court." (See commentary by David D. Siegel in McKinney's Cons. Laws of N.Y., 1968-1969 cumulative annual pocket part.) Further, the UJCA (§ 2300, subd. [b], par. 1), in making application of the act to certain courts, states: "1. Town and village courts. This act shall apply to: (i) every court in the state which is established in and for a town, whether denominated `justice court', `justice's court', `justice of the peace', `town court', `office of justice of the peace', or any other combination of words denoting the office or court commonly known as that of justice of the peace of a town". In both of these sections the intention of the Legislature was to create a one-court concept on the Justice Court level. In the Justice training program conducted by the Judicial Conference of the State of New York, trainees are instructed to have all cases brought in the name and venue of the "court" instead of the individually named Justices. It also means that in the town court, where there are two Justices, either one can preside over the case up to the point of hearing evidence. At this point whichever Justice proceeds to hear evidence must continue until that particular trial is completed. This procedure is now uniform in all the courts of the system, including town, village, city, district, county, family, surrogates, et al.
For the above reasons the motion to amend the information to read that it be directed to the Justice as a Town Justice instead of a Justice of the Peace would not comply with the instructions and teachings of the Judicial Conference course for Justices and is therefore denied. However, this court on its own motion will amend the information by striking the words "Walter W. Dunbar, Justice of the Peace of the Town of Dix", and insert the words "Town Court of the Town of Dix" in their stead. The date of December 19, 1968 is continued as the date for jury trial in this matter.