Opinion
December 2, 1958
Appeal from the Court of Special Sessions, Columbia County, RAY R. LANT, J.
Michael Le Sawyer and R. Waldron Herzberg for appellant.
John N. McLaren, District Attorney, for respondent.
When a person is arrested without a warrant for a misdemeanor, offense, infraction or violation of an ordinance, he must be taken immediately before an available magistrate in the county in which the offense charged is alleged to have been committed, who is nearest or most accessible with reference to the place where the arrest is made. (Code Crim. Pro., § 164.)
Heretofore some of the arresting officers have misunderstood or failed to follow this section. When a person is brought before a magistrate who is not the nearest or the most accessible, any judgment rendered by the magistrate is invalid even though such magistrate may appear to be clothed with jurisdiction.
When a police officer arrests an individual it becomes his duty therefore to make a reasonable effort to ascertain who is the nearest magistrate and whether or not he is available at the time. If the nearest magistrate is not immediately available, he is not required to await the return of the Justice of the Peace, but may then transport the person charged to the next nearest accessible magistrate.
On the 31st day of May, 1958, the defendant was arrested in the Town of Canaan by one Everett MacCormack, a Deputy Sheriff of the County of Columbia, upon a charge of speeding. The nearest Justice of the Peace or Magistrate to the place where the arrest was made, was Judge DENIS J. FALTER of the Town of Canaan. The arresting officer made reasonable effort to determine whether or not Judge FALTER was accessible at the time and he was informed that he was not accessible. On this appeal Judge FALTER confirms this fact by an affidavit in which he states "I was not then actually present at my home, having gone to Sears-Roebuck store in Pittsfield, Massachusetts, at that particular time." Apparently the next nearest Justice of the Peace was Judge RAY R. LANT of the Town of Chatham, New York, before whom the defendant was arraigned about 2:30 o'clock in the afternoon. The arresting officers, according to Judge LANT, informed him that they had ascertained that the nearest Justice of the Peace, DENIS FALTER, was not at home at that time.
I therefore hold that Judge LANT acquired jurisdiction and the judgment appealed from is affirmed.