aaa aac eee a nus nner ame ee eT TT
tion charging such offense may be properly filed in such.
court.
These offenses are not indictable and
there are no charges that can be properly joined with
relation to my client that are indictable. No informa-
tions, absent a waiver, which will not occur in this
case, could be properly filed in County Court and, |
therefore, the County Court judge does not have trial
i jurisdiction over this matter. Section 710.50, regard-
ing in what courts the motion to suppress evidence must
3 FBD2
be made, makes it clear that only this court has trial
jurisdiction and that only this court has jurisdiction
to determine the motions to suppress and that since
Judge Clyne can have only preliminary jurisdiction,
sitting as a Police Court Judge, and since the motion
to suppress is part of the trial jurisdiction, Judge
Clyne has no jurisdiction, no matter what hat he is wear-
ing, to hear the motion to suppress in this case.
Section 710.50 of the Criminal Pro-
cedure Law is specific in that if an information is
pending in a local criminal court, the motion to suppres
must be made in such court, and Subdivision 2 indicates
an appellate division annotation. What we are dealing |
“er ntti enanerecrmetatifenirinanininat esti ion sascha jianiaile HORSEMEN seven
|
4
late
BID IT A Tiras er ek ite av mre rte ie alinte aeons I pve ag nea uN wpa aI Om degen iA eTteTCTAS oe AC aN Pom ies Pasagen erie vieimnnnin nie coast sepia tno my AMAR HNO oD th kei me sees dwrsesonbrie S04 nara iv assah
with here is trial jurisdiction and not preliminary furde~
diction. Under the old Criminal Procedure Law - -. :
THE COURT: No, let's deal with the
law we have now. Miss Thayer, do you have anything to
say?
MISS THAYER: Your Honor, we are ready
to proceed with our suppression hearing and with regard |
to Mr. Oliver's objection to transferring the matter to
Judge Clyne, we object and concur in his arguments.
MR. OLIVER: Your Honor, one further
comment -- our clients are charged with offenses and the
mattersMr. Dorfman is relating to do not concern our
clients. Our clients were not in the car when this man
was arrested and I think it is an injustice to our
clients to associate their case with those in County
Court.
THE CUURT: You may think that, sir.
MR. DORFMAN: Your Honor, it is the
people's contention under the Criminal Procedure Law
that Judge Clyne, sitting as a local criminal court
judge, has jurisdiction to hear the motion herein and,
more importantly, as counsel is aware and the court,
there is the necessity of bringing in witnesses from
St tere btn tinct
“SPLASH ec ABYSS sins cenanPaseibaae
“ hei MARSH nunnery ahi dec ld
8
Sach eos aseSar oe ial ons tsveariataliniahiui)ico) magrmicestisoenileniaie aoa wen Yo Sinnhrconchonhte
other areas and which would be nepativive and it ‘cs. in
the interest of all parties to have but one hearing with
all of the witnesses available at that time. I think
in the interest of justice, time, and expense, that in
all fairness, the matter should be heard by Judge Clyne. .
THE CUURT: First of all, it is my
understanding if a superior court judge sits as an acting
Police Court judge, he is sitting as a Police Court
judge and not a County Court judge.
MR. OLIVER: Your Honor, Section 10.30)
specifically provides: A superior court judge sitting
as a local criminal court does not have trial jurisdic-
tion of any offense.
THE COURT: He has preliminary juris-
diction. The question is whether or not the hearing of
a motion to suppress is preliminary jurisdiction or
trial jurisdiction and I am going to leave that to the |
County Court Judge, because any appeal from this court |
will go to the County Court Judge anyway and so if he :
gives an opinion in the first instance, it saves one
step.
Secondly, whether or not it is proper
__is a question for Judge Clyne to determine in his
TET ANA ho aii i todos ita tiv tnt
7055
Poem
"es aG <4
abner winelb Mason ahi owen tM! Pthanrle elonnese iter aatarn tevatcateetee tence aaa nen ee
9
ORCS LR MLO IS UP EN rT OE NTR A PENN MO TNFR
2s a ete ace a ean nner
ultimate wisdom. We all know, having listened to Judge °
Cook, the courts are overly congested with motions,
trials, and hearings and if we can take six cases and
hold but one hearing, and as long as the hearing is
properly and fairly heard, everyone is best served; so
I am going to put the matter over until Tuesday, Novem-
ber 24th, to be heard in County Court, if Judge Clyne
accepts jurisdiction, and if not, we will
down for here.
MRe OLIVER: Your Honor, let the
set the case
with relation to my client are properly joinable with
j
record show we object on the ground none of these rs
|
any others under the rule of jointure.
THE CUURT: I think you
mention that to Judge Clyne on Tuesday at
Any witnesses under the subpoena power of
are still under subpoena and are bound tu
Tuesday afternoon at County Court, second
County Courthouse.
BE Ht te HE He 4b th PE ab aE ae tb db OE Ge th te to Ae te
should also
two o'clock.
this cvurt
appear next
floor, Albany
ERIN TRSTEN ASHI ER OAc Nei NHI cabbie carina inl nea
Supreme Court—Appellate Division
| Chird Dudicial Orpartment
November 24, 1981
41689 - In the Matter of VERA MICHELSON et al.,
Petitioners,
vi.
HON. JOHN CLYNE et al., Respondents.
Application, pursuant to CPLR article 78, for judgment
in the nature of prohibition granted, without costs.
A superior court judge, even when sitting as a local
criminal court, has no trial jurisdiction of a violation
(CPL 10.30, subd. 3). A superior court judge is limited
to preliminary jurisdiction in such a situation (CPL 10.20,
subd. 2). In our view, a suppression hearing falls within
the term trial jurisdiction (see CPL 1.20, subds. 24, 25;
ef. CPL 170.15, CPL 710.50) which, in the case of a
violation, is lodged exclusively in the local criminal
court (CPL 10.30, subd. 1, par. [a]). Therefore, the
respondent County Court Judge is without jurisdiction to
preside at the hearing to be held on petitioners' motion
to suppress.
MAHONEY, P.J., SWEENEY, KANE, CASEY and WEISS, JJ., concur.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: THIRD DEPARTMENT
i Satna gt porn ame emir sam ain ela pane tM See A
oe a
An nn
VERA MICHELSON and AARON ESTES,
Petitioners,
~against-
HON. JOHN CLYNE, HON. THOMAS W. KEEGAN
and HON,
SOL GREENBERG,
Respondents.
BRIEF FOR PETITIONERS FOR A WRIT
OF PROHIBITION
LEWIS B. OLIVER, JR,
Attorney for Petitioner
31 Barclay Street
Albany, New York 12209
518-463-7962
ANITA THAYER
Attorney for Petitioner
Thayer and Walter
69 Columbia Street
Albany, New York 12207
518-462-6753
Estes
Michelson
ALLL RMA LS ARN eN Sti iiiivccyebeniye tia see,
Hy
Mi
bd
BACKGROUND
On September 21, 1981, John Spearman was arrested in
a car near the motel. in the City of Albany where the Sprincboks
rugby team were staying and charged with possession of a gun
allegedly found in the vehicle. Subsequently, Hon. Thomas W.
Keegan, Justice of the Police Court of the City of Albany,
issued a search warrant for the apartment of petitioner Vera
Michelson.
On September 22, 1981, Michelson's apartment was
searched under the authority of the warrant. Based on evidence
allegedly found inside his personal luggage, Michael Young was
also charged with possession of the gun allegedly found when
Spearman was arrested. Both Spearman and Young have been in-
Gicted for felony gun possession charges and the indictments are
now pending a motion to suppress and trial in Albany County Court.
Also as a result of the search of the apartment, Young
and petitioners Aaron Estes and Michelson were charged with in-
formation in Albany Police Court with possession of marijuana
in violation of PL 221.05 and possession of firecrackers in viola-
t:cn of PL 270(2) (b) (i). Both of these charges are violations (not
misdemeanors or felonies) now pending in Albany Police Court,
and it is not alleged that petitioners were acting in concert.
(A copy of the violation informations are attached to the peti-
tion herein).
Counsel for petitioners were advised that a motion to
suppress the alleged marijuana and firecrackers would be held
ste mada 2ommnon
om
SHREW e aes abaaiDBnenicist bad wina>)iowh) vans
before Hon. Thomas W. Keegan in Albany Police Court on Nov-
ember 17, 1981. Counsel issued various testimonial subpoenas
and subpoenas duces tecum, and on November 17, 1981, answered
that they were ready to proceed with the hearing on the motion
to suppress.
However, the People requested an adjournment in order
that Hon. John J. Clyne, Albany County Court Judge, could hear
and cecide a combined suppression hearing for the felony gun
charges against Spearman and Yo ng pending in County Court and
for the marijuana violation and firecrackers alleged against
petitioners. The People proposed that Judge Clyne would hold
one combined hearing sitting as a County Court Judge as to Spear-
man and Young while at the same time sitting as an Albany Police
Court Judge as to petitioner's alleged marijuana violation and
firecrackers. The People indicated on the record that Judge
Clyne had agreed to conduct this simultaneous hearing, and that
the combined hearing would be heard before Judge Clyne on
November 24, 1981, at 2:00 P.M. in Albany County Court.
Petitioners objected to the combined hearing of the
petty offenses with the felony gun indictment against Spearman
and Young on jurisdictional grounds. Jugge Keegan, remarking
that petitioners' appeal was to County Court and that a combined
motion to suppress would "save a step", overruled petitioners’
objections and remitted petitioners' hearing on the motion to
Suppress to Judge Clyne. (The transcript proceedings in Police
Court on November 17, 1981, have been submitted to this
Court.)
Pn een NEY
Qed
It is evident that Judge Clyne does not have trial
jurisdiction of the subject matter of petitioners’ minor viola-
tions as a County Court Judge. PL 221.05 and PL 270(2) (b) (i)
are both “petty offenses" within the meaning of CPL 1.20(39).7
Petitioners have not been indicted or otherwise charged with
any crime, only these two petty offenses. CPL 10.30(1) (a)*
is explicit that a local criminal court has "exclusive trial
ae tener caergee ee omene neta ateimee dain: by seit cetera er atnanr sean aemmanat
jurisdiction of petty offenses” (emphasis added), except pursuant
em smn saris anand mean non Pee ianeenmnninitrneniamanenenennnenen nah WAnitA
to CPL 10.20(1)(¢c). Thus, CPL 10.30(1) (a) explicitly excludes
the subject matter of petitioners’ petty offenses from the jur-
_isdiction of County Court. People v. Judges of the County Court
eneenemae ne een Veena seme sa wie a nee nm erewanencrain Ys sania Ne neewengt nANANe hve ms Nn ecm yal
of the County of Oswego, 56 A.D. 2d 728 (4th Dept. 1977) (County
Court has no trial jurisdiction of violations).
pinta euevererns sana os inrees ag ein nmnedisdementsliewta thee hin yt oeihbentat ir shi,
139, "Petty offense” means a violation or a traffic infraction.
520.30. Local criminal courts; jurisdiction.
1. Local criminal courts have trial jurisdiction of
all offenses other than felonies. They have:
(a) Exclusive trial jurisdiction of petty offenses
except for the superior court jurisdiction thereof prescribed in
paragraph (c) of subdivision one of section 10.20; and
wz ted
‘inant MA SG CBN rane rity atm ea
It is also evident that Judge Clyne does not have
trial jurisdiction of the subject matter of petitioners’
minor violations as a County Court Judge pursuant to CPL
10.20(1)(c).3. Trial jurisdiction is cbtained by a court only
when an indictment or information charging such offense may
"properly" be filed in such court. CPL 1.20(24).* An
nformation charging a petty offense may be filed only in a
local criminal court, not a superior court. CPL 1.20(4).°
No indictment may be returned which charges only a petty
sehjensanhy ‘iethimreviittplas enlistees semen
§ 10.20 Superior courts; jurisdiction.
1. Superior courts have trial jurisdiction of all offenses.
They have:
(c) Trial jurisdiction of petty offenses, but only when
such an offense is charged in an indictment which also
charges a crime.
24. “Trial jurisdiction.” A criminal court has “trial
jurisdiction” of an offense when an indictment or an
information charging such offense may properly be filed with
such court, and when such court has authority to accept a
plea to, try or otherwise finally dispose of such accusatory
instrument.
4. “Information” means a verified written accusation by a
person, more fully defined and described in article one
hundred, filed with a local criminal court, which charges
one or more defendants with the commission of one or more
offenses, none of which is a felony, and which may serve
both to commence a criminal action and as a basis for
prosecution thereof.
LenS MAREN Rta es ies sletaisnsoniviowsis Ala ici en aiadoca
offense, CPL 200.10,° sO petitioners have not been and can not
be indicted for the petty offenses charged herein. CPL 10.20(1) (c)
gives a Supérior court trial jurisdiction of a petty offense only
when the offense is charged in an indictment which also charges
a crime. Since petitioners have not been and can not be indicted
for the petty offenses herein, County Court does not obtain jur-
isdiction of the subject matter of petitioners' petty offenses
by virtue of CPL 10.20(1)(c). People v. Judges of the County
names aoe sine ifoia gia Ny lyons wenn arom emeRNAbe edi Aen
Court of the County of Oswego, supra, 56 A.D. 2d 728.
It is evident that Judge Clyne does not have trial
jurisdiction of the subject matter of petitioners' minor viola-
tions by removal because an information charging petty offenses
only can not be removed to County Court. CPL 170.25.
The sole remaining theory by which Judge Clyne might
obtain jurisdiction of the subject matter of petitioners' alleged
petty offenses is by designating himself as a Police Court Judge
and sitting on the hearing to suppress the evidence with “two
hats"; as County Court Judge for Spearman and Young on the felony
gun indictment, and as a superior court judge sitting as a local
criminal court judge for petitioners' petty offenses.
ee ees St, a ema Ny yd gn Ain “atime Sha ene sede
$5560.16 tHdidtment: Aelinition:
An indictment is a written accusation by a grand
jury, filed with a superior court, charging a person, or two
Or more persons jointly, with the commission of a crime, or
with the commission of two or more offenses at least one of
which is a crime. Except as used in Article 190, the term
indictment shall include a superior court information.
tages RRS
SETAE OYA suai sds nonlin ichphitniniulenenndone
pr
ARGUMENT
a eo
POINT I
cae eet ere en nena
A HEARING ON THE MOTION TO SUPPRESS EVIDENCE
IS PART OF THE TRIAL JURISDICTION OF A COURT
BEFORE WHICH CRIMINAL CHARGES ARE PENDING, AND
JUDGE CLYNE SITTING AS A LOCAL CRIMINAL COURT
JUDGE HAS NO TRIAL JURISDICTION OVER THE SUBJECT
MATTER OF RETITIONERS' PETTY OFFENSES.
The Legislature has made a judginent that “petty
offenses" are too minor to become the concern or engage the
time of superior court judges, and therefore enacted that the
local criminal courts have "exclusive" trial jurisdiction of
petty offenses. CPL 10.30(1) (a) The Legislature has further
enforced this allocation of jurisdiction by providing that
a superior court judge even while sitting as a local criminal
court, does not have trial jurisdiction of the subject matter
of petitioners' petty offenses:
3. Notwithstanding the provisions of subdivision
one, a superior court judge sitting as a local
semen names nea ain eavapennomel oo a Anarenin nth menenarsine epee aternranntes ent
criminal court does not have trial jurisdiction of
erhete mene mamencag wer da srartvoennnntein ee rots ante Neneany Seemaunn pay oman Ns ANA em
any offense, “but has preliminary jurisdiction only,
enone Tee cnpmeoe ween
as provided in subdivision two.
CPL 10.30(3) (emphasis added)
The sole question, therefore, is whether a hearing on the motion
to suppress is part of the trial jurisdiction, or the preliminary
jurisdiction, of the local criminal courts.
This Court has held that a hearing on a motion to
suppress evidence is within the jurisdiction of a court in which
criminal proceedings are pending “as trial court". DeJoy v. Zittel,
67 A.D. 2€ 1076 (3rd Dept. 1979). The statutory structure of the
CPL makes it absolutely clear that the same principle applies
here, and that the hearing on the motion to Suppress herein is
ot pA Met PATRIA OASIS UST Why citi oa eh oyu li mmasta ine auce shbound *
within the exclusive jurisdiction of the Albany Police Court
"an trial court”.
Trial jurisdiction and preliminary jurisdiction are
Gefined by CPL 1.20(24), (25), respectively, as follows:
24. “Trial jurisdiction." A criminal court
has"trial jurisdiction" of an affense when an
indictment or an information charging such of-
fense may properly be filed with such court,
and when such court has authority to accept a
plea to, try or otherwise finally dispose of such
accusatory instrument.
2S... “Preliminary jurisdiction...” A. criminal
court has "preliminary jurisdiction” of an offense
when, regardless of whether it has trial juris-
diction thereof, a criminal action for such offense
may be commenced therein, and when such court may
conduct proceedings with respect thereto which lead
or may lead to prosecution and final disposition of
feaeenee vere MeN net enema mieated iranian Qmiemnnaonang a ostumns =! 9. ot Antwaan ON semen Sutera mmiynenh on ci
the action in a court having trial jurisdic ection thereof.
(emphasis added)
Preliminary jurisdiction of a superior court judge
sitting as a local criminal court astoan offense is defined by
PL 170.15(2). The statute states the jurisdiction of the superior
court judge sitting as a local criminal court ceases when the de-
fendant is arraigned on the petty offense. After arraignment
a superior court judge sitting as a local criminal court
"must then remit the action, together with
all pertinent papers and documents, to a local
criminal court having trial jurisdiction thereof.
The latter court must then conduct such action to
judgment or other final disposition."
CPL 170.15(2) (emphasis added)
The Practice Commentary makes it absolutely clear that a
Superior court judge sitting as a local criminal court must
after arraignment remit the matter to a local criminal court
because preliminary jurisdiction ceases at that point:
FRANCS SAU ileal
‘
"Since he does not have trial jurisdiction
of the offense (§10.30[3]), he is required
to remit the case to a local criminal court
that does."
McKinney's, Practice
Commentary, CPL 170.15
The definition in CPL 1,.20(25) makes it clear that
preliminary jurisdiction Goes not include “prosecution
and final disposition", because these phases of the case are
to be held in the "court having trial jurisdiction thereof".
In the CPL preliminary jurisdiction of local criminal courts
is governed by Part 2, Titie H, 170.10 ~ 170.75, entitled
"Preliminary Proceedings in Local Criminal Court." CPL 170.15(2)
which is included within Part 2, Title H, and 10.30(3) are
consistent with New York's traditional dichotomy between a
judge as "magistrate" and a judge as a "court of special
sessions". A judge acting as magistrate can act “in the pre-
liminary stages of a criminal action when an information has
laid before him, when he issued a warrant of arrest or a Summon s ,
when he conducted a preliminary hearing upon a felony charge,
when he held a defendant for the actionofa grand jury and the
like". McKinney's, Practice Commentary, CPL 10.10.
Beyond arraignment or preliminary hearing, only the
trial court in this case Albany Police Court, has jurisdiction.
The courts have consistently rejected arguments to expand the
power of County Court beyond preliminary jurisdiction in re-
lation to matters pending in criminal court. See People v. Smith,
430 (Dutchess Co., 1974).
tJ
yr
Tine aN
t
Se Oe ee Py " ile
Pets . CR ea a er Reh ian esa re
Ss ioe cn RSD SIERO NENAS ARAN atc al valuename Re ase SM NiPc ei nn etrabeigdbieitnenipmvinashaeuinns ine
* ° *
os
Once a petty offense information is beyond arraign-
ment the case is within the trial jurisdiction of the local
criminal court. In the CPL “prosecution” in local criminal
courts is governed by Part II, Title K, 340.10-370.10, entitled
"Prosecution of Information in Local Criminal Courts - Plea to
Sentence." This “presecution" phrase is specifically exempted
by the definition of preliminary jurisdiction in CPL 1.20(25).
Discovery, omnibus motions, pre-trial hearings and the like are
part of the trial jurisdiction of the local criminal court. Dis-
covery and motions are specifically within the trial jurisdiction
of local criminal courts. CPL 340.30.
The CPL explicitly provides that a motion to suppress
regarding an information must be made and determined in the local
criminal court where the case is pending. CPL 710.50(1)(c), (2)
state that the requirement of hearing the motion in local criminal
court is part of the trial jurisdiction of said court:
§710.50 Motion to suppress evidence; in what courts
made.
1. The particular courts in which motions to sup-
press evidence must be made are as follows:
(c) If an information, a simplified information,
a prosecutor's information or a misdemeanor complaint
2. If after a motion has been made in and determined
by a superior court a local criminal court acquires trial
jurisdiction of the action by reason of an information,
a prosecutor's information or a misdemeanor complaint
filed therewith, such superior court's determination is
binding upon such local criminal court. If, however, the
motion has been made in but not yet determined by the
superior court at the time of the filing of such in-
formation, prosecutor's information or misdemeanor com-
plaint, the ‘superior court may not determine the motion
Makan Viscedl ol TUL DRE tia. LeaDbaulh ai“
OSTIUM ACS eR G Sei iaha Naik etiayiulitiirinse a See on ical ata nba NiNc sleet atime cw Wan yaaa bedded 5 sarin iri wi nnarml A paatnetnh chins aouhegebal
but must refer it to the local criminal court of
hi ASN NN NA APN eS IR iy teeta i ene
trial jurisdiction.
® (emphasis added)
Under the former Code of Criminal Procedure it was
quite clear that the proper jurisdiction for a motion to sup-
press was in the court having “trial jurisdiction". ¢.c.pP.
§813-e (repealed):
§18-3. In what courts made
When an indictment, information or complaint upon which
the defendant may be tried for a crime or offense has
been filed in a court, or after the defendant has been
held by a magistrate to answer a charge in another
court, the motion shall be made in the court having
trial jurisdiction of such indictment, information,
complaint or charge.
A court without trial jurisdiction was without jurisdiction to
entertain a suppression motion. People v. Kellog, 53 Misc. 2d
560, 561 (onond. Co., 1967). See also People v. Gatti, 16
Sineeegtenes sada natemnn me vem pian evan nar
N.Y. 2d 251, 254 (1965);People v. Guenther, 77 Misc. 2a 643 (Monroe
reteereemenenaiisnnemnnsenen Ninn hs seb gmnanmeimtiinsnisastqeann saninshn¥nilietyarenias =< nt elemnntinen si
Co., 1974); People v. DeCicco, 37 Misc. 2a 937 West. Co., 1962).
Since the allocation of jurisdiction in CPL 710.50 was not in-
tended to change the former destinCtion between magistrates
and courts of general sessions, a motion to suppress is clearly
within the trial jurisdiction of the local criminal court.
DeJoy v. Zzitell, supra, 67 A.D. 2d 1076, and the statutory
Structure making the motion to suppress part of trial jurisdiction
of a court make common sense. The motion to Suppress determines
what evidence will be admissible at trial. Only a compete@at
court with trial jurisdiction over an offense can make that
determination. |
ie,
Sa
“tees
il
In conclusion, it is submitted that the Legislature
has removed the prosecution of petty offenses from the subject
matter jurisdiction of superior court judges Sitting as a local
criminal court. Judge Clyne sitting as a local criminal court
has no jurisdiction of the subject matter of petitioners' alleced
petty offenses, because the motion to suppress is beyond arraign-
ment and part of trial jurisdiction, not preliminary jurisdiction.
Cf BoC ore e.
og
: , a
. ss
=
ise
M's ; by: Ge:
8
Sg CIR ©
or
ag
§ 221.00
PENAL LAW
Cross References
Designation of marihuana as schedule I controlled substance, see Public
Health Law § 3306.
Library References
Drugs and Narcotics e746, C.3.8, Drugs and Narcotics §§ 2 to
4, 102, 105, 106.
§ 221.05 Unlawful possession of marihuana
A person is guilty of unlawful possession of marihuana when
he knowingly and unlawfully possesses marihuana.
only by & fine of not more 1 one hundred dollars. However,
where the defendant has previously been convicted of an offense
defined in this article or article 220 of this chapter, committed
within the three years immediately preceding such violation, it
shall be punishable (a) only by a fine of not more than two hun-
dred dollars, if the defendant was previously convicted of one
such offense committed during such period, and (b) by a fine of
not more than two hundred fifty dollars or a term of imprison-
ment not in excess of fifteen days or both, if the defendant was
previously convicted of two such offenses committed during such
period.
Added L.1977, ¢. 360, § 3.
ear
Historical Note
Effective Date; Applicability. acts committed on or after such date,
section effective on the 30th day aft- pursuant to 1.1977, ¢. 360, § 32.
er June 29, 1977, and applicable to
Practice Commentary
By Arnold D. Hechtman
This is the key section of the Marihuana Reform Act (L.
1977, ¢. 360). It defines the offense of “unlawful,” as dis-
tinguished from “criminal,” possession of marihuana and con-
stitutes the so-called “decriminalization” of possession of 25
grams or less of marihuana since the penalty upon conviction
is a “violation,” which is a noncriminal offense.
The handling of charges and punishment upon conviction
under this section introduce a number of concepts that are
new to New York criminal law. First, conviction hereunder
is punishable “only by a fine” and, second, upon arrest the
defendant may be subjected to the jurisdiction of the court
only by the issuance to him of an appearance ticket. This
98
sm
eta tse
offense
or pho
no rec
inal J)
Adljeuitt
lay
ete}
Pris
AA oe!
‘ON ld nti soli
ie ag mitten i i
ee ema
§ 270.00
PENAL LAW
devices
and where the total]
any one Premise oA
exceed one hundred devices,
om
2. Offense,
Shall Possess, Use, explode or
guilty of a Violation,
(ii) Posses
Shall be a
any pers...
cause to &xplode a oe
r
fireworks were int
3. The Provisions of this Section shall not appl
in mentioned, while i
ation agencies for the pur
Of tra
ment of which is not Prohibited by the then
mmission regulations as formulate
"SS the same be held Volun
‘tation companies ag yw
none of the provi j
evices used by
Oo in Subdivision se
and
Provided, that
to Signaling @
cles referred t
Seventy-five
for blasting or Simi
associations,
Of individuals ;
act, or the sale or '* Cartridges for a show or theatre,
or for signa] Purp i
training, or the use
ge, transportation or sale for
use of fireworks in the
television broadeas
contained
eworks, nor the
Provided the same are to be
ny firewor, ®
|S hsaae es,
far
4h. the sale o
’ ae rifles, shot
opeld
he pur}
pad or fort
Pe oy may go abro
manufactur
ae. to!
gine
‘e geal in and free}:
to
- such purposes.
“ Notwithstanding
oe it shall be unt
a nmunition desigy
ey “
ge ear to any icici |
a The violation
1968 c. 1030; amend
got c, 840, § 1; Let:
“a Amendment. Stutnh 3
oe 1, off. June 19, 147
a s ; ast] s i
"yeghnning Phe prov
; _ Clavse (31,
wey
i975 Amendment, i “
1075, e, S40, $1, ‘
tonated existing tes ‘
ys istitnted “sell or 4
gas of elt, or furnist
Shoop ontise te exphaje”,
fad 2 paar. Ob) Eira,
. WTS, added pat
eff, Sept. 1,
In 1969, subdivir
apparent purport
selling handgua ge
possess hand
ciencies. Fit ;
in firearms,” 4
ee
does not expr
is no stated © wi)
‘te P PUBLIC SAFETY § 270.00
Pty
oo ay with, the sale of ammunition for revolvers or pistols of any
Sry 4 :
| $d, or for rifles, shot guns, or other arms, belonging or which
_ }gay belong to any persons whether as sporting or hunting
Le , geapons or for the purpose of protection to them in their homes,
" ak @,as they may go abroad; and manufacturers are authorized to
Vides @otinue to manufacture, and wholesalers and dealers to contin-
to deal in and freely to sell ammunition to all such persons
nee s br such purposes,
" th * : . . . : *
id 3, Notwithstanding the provisions of subdivision four of this
i # ¥ *
wetion, it shall be unlawful for any dealer in firearms to sell
*y ammunition designed exclusively for use in a pistol or re-
: : “ver tO any person, not authorized to possess a pistol or re-
tO ve “ier, The violation of this section shall constitute a class B
~ sdemeanor,
ee 5, ¢, 1030; amended 1.1967, ¢, 791, § 48; 1.1969, © 709, § 1;
‘978, ¢. B40, $2; 1.1978, c. 286, § 1.
Historical Note
Ae. ‘WB Amendment, Subd. i. £.1978, 1969 Amendment, Subd. 5, E1980,
y Sy “$1, eff. June 19, 1978, in sense. 700, eff. Sept. 1, 1962, added subd
rhe ““* beginning “The provisions of" 5.
pp “red clause (3). 1967 Amendment, Subd. 3. 1.1967,
ek 1375 Amendment. Subd. 2, par. (a), ¢. 791, § 48, eff. Sept, 1, 1967, insert.
dual 2 oO5, @ 840, 8 1, eff, Sept. 1, WTS, ed “or for dog trials or deg training”.
_—" ws 8oated existing text as par. (a) ,
il : Derivation, Penal Law 1900 §
shes 00d gil at “ell ae faraieh” oni
, ota Oey et Or furnish” for igo4-a, added £1940, ¢. 387; amend
pe Wile tecieris aS Le 8 ed LAD, @. 731, #1 to 4; L,I c.
ene nn 280; L.2042, «. 745, $1; L143, «.
nx? Subd. 2, par. (). T.1075, ¢, 840, $4, 105, § 6: L148, « 387: L.1950, ¢.
oii aff, Sept, 1, 1975, added par, (b), 765; L958, « 106; L.toss, « 457:
wee L950, ¢. 851; L.1965, ¢. 272,
jo>
aut ,
ated Practice Commentary
fairl
ups By Arnold D. Hechtman
his 1969
ye In 1969, subdivision 5 was added (1.1969, ¢, 709) for the
is apparent purpose of prohibiting a dealer in firearms from
p
for Selling handgun ammunition to persons not authorized to
ith Possess handguns. The provision exhibits a number of defi-
ee flencies. First, the prohibition ia directed against a “dealer
he in firearms,” a term not defined in Article 270. (Though
be the term is defined in § 265.00(9], that definition is applica-
ble only to Articles 265 and 400), Second, the subdivision
does not expressly require a culpable mental state, i. e., there
wd iS no stated requirement that the dealer “know” that the
3 eae buyer is not authorized to possess a handgun. However,
621
i
cine
tee eenanenene
A Mbit mae ogg Fete
(5 lheapae ale
SiR teipiieenvonidsaiitnadaares
inst- NOTICE OF
MOTION
4 (*
i ae
a | me wh by Da oy : a i s
; Ba » NMOCICE £nat upon the annexed affidavit
ie sa he, %
et ay ae: i ; } ee ar eens : ‘a
ae es fe. * 2 j rite 4 HCI hays a yh Ey ley ir
“
goed
} } ’ Oi Ie 1] : i ri § 3 + . i
bd . ¥
) ¥ x wy
’ ’ } i ya fg
J +7 a ON ee
z mip Sas ?
mn
i Y P } ¢ : om me } . , : :
4 i } t t 3 rye i ry } } a
‘ rae | re Wed
“ q ‘ «> j
8 WB Dt GES» Bor eaean I
2 A RNIN INE Ese 5
ae
4
ia i dieses seoseonsingeeren :
o NAA rom Hs bn at shaver: " * eb SW tej soda de PSR entre ew OME Te eres MTOR Tame nner ere er he 21 ms ars anv eC ga Poannemdann Ate ya ennneey ANA PAPE Ye Re Nee VHA tan OR ORR Aa rinmaretan Aneta eyes
4
ates
ANITA THAYER, Of cc
ALTER & THAYER
Attorney for Defendant
slumbia Street
. New: York 12207
| (S18) 462-6753
i : Seyy, tty
| eA? N " my to FT rie a County a
CLERK, rice Court
City oe ae ae @ eS thd
by
q
Me
Aine
he
PC
ff
re a
ITs
THE
a j
Y
i
u
5
i]
.
wee
v2 ~ e Mey th y ry
re ASE CLE NAS
CE CO
FROPLE OF T
ik
4
»
S17
VTE
-~against-
MICHELSON,
Fi * .-
Becks 4 J KK)
) 9 ea
YO oY
7 4 y
: i ,
, ;
} f
:
ae
. fou
k } Port Of
Pm Mera. 3 H
AS 1oOlai ae
hi x Vv Co} t ify
} } 3 VRQ } aii om
s +)
i OP a
LL ss IS6t be gran?
YLth in 20 days of
:
is
t Bi
OF
NEW YORK,
Dae toencdant.
Teh Creve ry Ee
b ng duly
Ss are trans
et ee
i Pi
ri. y } taf
eee ' Be
‘a. egy Bet ogy
fendant’s speedy
Jant is chars C 73 |
2 lee §: 27040052)
ME ee
()
+
*
trial
e | * ‘ .
8. that
re not
f a
eriminalk
APPIDAVIT IN
SUPPORT OF
BEDY TRIAL
MOTION
cs and says
Fay EN We
~~ 1 ‘ 4
> ¥ Th t dat
s ‘
+ | ic witn
[ tke this
rot LO.
a motion
1 €3 addy for
action
“etsy sar nfv Laan te AO nN LEN ECAR PHAROAH TENS TRON ARRON wel
eusy
4
é
DRY Wine sede soy aka apsnnens
aL AMEN AN ARAN eins Meonnc te te ly
ey} r roy “ee ~ < py et pag ke ao 5 Ma ahh - nigh mm S Ni 2
4. me charges against defendant must be dismissed
we
é
aise the People were not ready for trial within 36 days
from the conmencement of this criminal action for a violation
Pursuant to C.P.L. § 30.36(1) (da).
. At arraignment defendant requested that
“
~
=~
i?
pe
Seed
~l
mad
ae"
Fey,
oeest
ined
tO retain counsel. pie.
—~<
7)
a
eas ibs lls Midi Sd Fe aco &§- + Fea: sl a i EB or, 4
%
jilorney and dirested to file any pre-trial
\ ™ pare yori, 3 os *
t+ ¢hargeable aga
haa
eto
¥
Pana
e
Be
a {
al ANSE SRTROAN A MRR pao cedn aoathgcivrnsa ine orca
‘a
4
e
i ‘ 13
3 ing fi
‘a ark &
i
Pa |
A
to
t
$
+ ¢
ny
‘
+
5
3
t ‘
I s
ne
r
*
{
*
¥
5 RoR
i,
%
4
arnt
“ig pee
13, 1981 the People requested
for two weeks to respond to the
This period of time from October 13, 1981 to
bie
Cosa uy
HOLE Fate
1981
October
i8 chargeable against the Peopl
~ + vy , See % Pg > Sapo - oh oe ane
L9Sl the cdefendant's case
he @
ssion hearing was scheduled for
@.
was
ad of time from October 29, 1981
rolL?, 1981 the defendant was. 1
LOn Hearing. The People reque
1OnNSs OF defendant to Nove
P si is 2 ef
) iY ue ndant @& court of
" a a . } s
‘ O . | j ‘
) i
¢ y ,
H Y H ,
. 7 » }
, Sta 1 that. sh 3 ly
a
5 rent sf ~ de
23. 3.2 : i ‘ gy 7 he eR
me 7 4 yee
1 Oey ad of 14 ys oc} ‘
i 5
eady
ste a
far @&. Joan uppression hearing
iy Of the excloudable qrounds in
L& Bleck: better Jaw that a wri
s os ¢ ,
ped Lege Che peritioner has
Bs + SBOE * ” b
e@: the decis Ho OF the Apyped if
4
i
z
PRratnahhn etna antes nth ee ath bn icin vai
Cloarly i1légal and) improper
t
od
st amege ten
Seo a ntaisaretigs whine thine bitin
a copy Of which is attached hereto as Exhibit A, conclusively
ase periods of delay
which were clearly ana
Ly The
re irized as fo12
ter Lod of 7 9
ifa2d we LOS
LO/ 43 - 10/29
i } 7 uid ; { 4
} } . L2/8
LS, )
dant a writ of Prohibition against the joint heari ng,
judicate that the adjournment during
“pletely meritless.
ods chargeable against the People
oe
@
Whe oe.
NO. Of Days C viative pays
* a
3 15
16 31
3 39
i 3 “2
Ww oOL i bove to be
“ ¥ 4 } + }
rs ; ss , _t : rad
rey itLOns iC De GALSmissecd, iLnis
were occasional by the People for reasons
j
Pe:
SS err rmesinenpermmeery soe se
reenter ing
+g mame remneneny
|
f
i
i
|
Seamer = aS
SAROASRSiehaneamenNecneONnsereeriianmallirY ni yneAMin cama iRNirncirnsinilnenuraiohneti a
that the Court hold a fact-finding hearing.
hi
serine jvm Gdiapageinadouenplinanetipasate Irae a calle emda neice bala eae eee eacendlamedininael ude aaidbiminnlaiieoo cma rT
%,
20. Defendant further reaues?
-
CE Sa Ai Og ‘ ae ny SN ¢ Biv: Bigs iy ha gay Wet, ge ioe Hy, a leat i ol Se
“ALLONS WLEnHIN ENeESe Motion Aver Ss are
t ‘i
bev
No¥wedl 651° (1978);
= see
et
SON
ey
eh fond
AES.
Hs Beale Seen a Sale taihs shoe Abbas af 4
we m wd 08 Boo 56 et i tts
a
4%
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: THIRD DEPARTMENT
VERA MICHELSON and AARON ESTIS,
Petitioners,
ORDER TO SHOW
CAUSE WITH
~against- APPLICATION
FOR A STAY
HON. JOHN CLYNE, HON. THOMAS W., KEEGAN,
and HON. SOL GREENBERG,
ee
Respondents.
Upon reading the annexed petition verified by
Anita Thayer, Esq. and Lewis B. Oliver, Esq. for a writ of
prohibition sworn to on the 19th day of November, 1981, the
violation informations, and upon all proceedings had herein, let
the respondents show cause before this Court at a motion term
thereof to be held at the Justice Building, State Street, Albany,
New York, on the Love day of November, 1981, why an order
should not be made:
1. Prohibiting Hon. John Clyne from presiding at
the suppression hearing of petitioners Michelson and Estis.
2. Directing Hon. Thomas W. Keegan to proceed in
his Court with regard to defendants Michelson and Estis.
SUFFICIENT CAUSE THEREFOR APPEARING, it is hereby
ORDERED, that service of a copy of this order and
Supporting papers upon Hon. John Clyne, Hon. Thomas W. Keegan,
and the office of the Albany County District Attorney, on or
before the 2.0'* day of November, 1981 at 5 o'clock shall
be deemed good and sufficient service; and it is further
