Opinion
January 13, 1976
Appeal from the Criminal Court of the City of New York, New York County, JULES L. SPODEK, J.
William E. Hellerstein, William J. Gallagher and Michael Lee Hertzberg for appellant.
Robert M. Morgenthau, District Attorney (Robert M. Pitler and Robert K. Collins of counsel), for respondent.
CPL 350.10 (subd 6) permits a Judge, conducting a nonjury trial of an information in a local criminal court, in rendering a verdict of guilty upon a count charging a misdemeanor, to find the defendant (1) guilty of the charged misdemeanor if established by legally sufficient trial evidence, or (2) guilty of any lesser included offense which is established by legally sufficient trial evidence.
Appellant was charged with the unclassified misdemeanor of failing to produce the required tax stamp for the livery vehicle which he drove when the summons therefor, returnable in criminal court not traffic court, was issued (Administrative Code of City of New York, § K46-9.0). After conducting a hearing as if the charge before him was a traffic infraction (Vehicle and Traffic Law, art 2-A), with neither prosecuting nor defense attorneys present, the court below found appellant guilty of disorderly conduct (Penal Law, § 240.20).
Disorderly conduct is not a lesser included offense of the unclassified misdemeanor of failing to display a vehicular tax stamp (CPL 1.20, subd 37). Moreover, as the District Attorney candidly concedes, the proof did not establish the offense of disorderly conduct.
Judgment of conviction, rendered August 20, 1975 reversed on the law and on the facts and information dismissed.
Concur: MARKOWITZ, P.J., TIERNEY and RICCOBONO, JJ.