Opinion
November 13, 1957
Appeal from the Court of Special Sessions, Monroe County, KENNETH D. MACKENZIE, J.
Charles B. Kenning for appellant.
Harry L. Rosenthal, District Attorney ( John J. Conway, Jr., of counsel), for respondent.
(Yates County Judge and Acting Judge for Monroe County). The defendant-appellant was convicted on February 6, 1957, of violating subdivision 21 of section 81 Veh. Traf. of the Vehicle and Traffic Law (passing a red light) before Justice of the Peace KENNETH D. MACKENZIE, in the town of Pittsford, Monroe County, New York.
The defendant-appellant claims some nine or more points of error on his appeal. They are set forth as follows, with the disposition of each:
FIRST: Defendant was not proven guilty beyond a reasonable doubt —
A reading of the testimony does not substantiate this contention.
SECOND: That the defendant was twice tried for the same offense —
The return of the Justice refers only to the trial of February 6, 1957. The defendant-appellant's affidavit cannot be considered to contradict or impeach the return ( People v. Soule, 142 N YS. 876). The appellant is bound by the return of the lower court ( People v. Newman, 137 Misc. 267). If the return is incomplete, the defendant-appellant should have proceeded under the provisions of section 758 of the Code of Criminal Procedure to have it corrected.
THIRD: That the Justice erred on the trial of January 16, 1957, wherein he withdrew his verdict after determining that the defendant was guilty —
The return before me shows only one trial, and the defendant-appellant is bound by the return made in this proceeding. (See People v. Newman, supra.)
FOURTH: The defendant-appellant was not afforded a fair trial because the same Justice is alleged to have sat at the January 16, 1957 trial as at the February 6, 1957 trial —
The return shows only one trial; therefore, this claimed error is without foundation of fact.
FIFTH: That defendant-appellant was not accorded a fair trial because he was not prosecuted by the office of the District Attorney —
So far as a defendant is concerned, it is not for him to select his prosecutor ( People v. Wyner, 207 Misc. 673 and cases cited therein); therefore, no error was committed.
SIXTH: That the transcript of the proceeding was incomplete —
The defendant-appellant's remedy for its correction is found in section 758 of the Code of Criminal Procedure.
SEVENTH: That the testimony offered by the People did not contain evidence that the defendant had violated section 81 Veh. Traf. of the Vehicle and Traffic Law —
A reading of the stenographic minutes shows otherwise.
EIGHTH: That the Justice of the Peace failed to consider section 84 Veh. Traf. of the Vehicle and Traffic Law —
The stenographic minutes show that defendant's own counsel read a portion or all of that section to the court on the night of the trial.
NINTH: That the traffic ticket issued by the officer was inaccurate and did not conform to the information —
This question has just been settled by the Court of Appeals in the case of People v. Scott ( 3 N.Y.2d 148) wherein it said that a summons is simply a notice to appear in a given court on a given day to be charged with a specific crime, and that it does not take the place of an information. It is not to be considered as a pleading. No error was committed under this point.
The defendant-appellant having failed to satisfactorily sustain the claimed errors, the judgment of conviction is hereby affirmed.