People v. Czajka — 11 N.Y.2d 253

Majority

p. 253

The People of the State of New York, Respondent, v. Richard J. Czajka, Appellant.

Argued April 23, 1962;

decided May 10, 1962.

Edward Schmitt for appellant.

I. Although an attorney may appear on behalf of the District Attorney of a county to prosecute a traffic infraction or crime, it is illegal for such attorney to so act without the permission of the District Attorney of such county. (People v. Rodgers, 205 Misc. 1106 ; Matter of McDonald v. Goldstein, 191 Misc. 863 ; People v. Wyner, 207 Misc. 673 .) II. Defendant was not tried by a court properly convened or

p. 254

a Judge duly sitting. III. The public offices of Justice of the Peace and Mayor of a village are incompatible and, therefore, the Mayor of a village cannot hold the elective office of Justice of the Peace in the town in which the village is located. (Matter of Burns v. Wiltse, 200 Misc. 355 , 303 N. Y. 319 ; Matter of Sulli v. Board of Supervisors of County of Monroe, 24 Misc 2d 310 ; People ex rel. Earwicker v. Dillon, 38 App. Div. 539 .)

Carman F. Ball, District Attorney (Dewey E. Ertell, Jr., of counsel), for respondent.

I. This case was properly prosecuted by a Deputy Town Attorney. (Turecamo Contr. Co. v. Bennett, 259 App. Div. 1094 , 260 App. Div. 253 ; People v. Wyner, 207 Misc. 673 ; People v. Scharer, 185 Misc. 616 ; People v. Black, 156 Misc. 516 ; People v. Montgomery, 7 Misc 2d 294 ; People ex rel. Pringle v. Conway, 121 Misc. 620 ; People v. Rodgers, 205 Misc. 1106 .) II. Honorable John J. Jablonski properly presided over this trial as Justice of the Peace of the Town of Cheektowaga. Defendant-appellant has no standing to raise this objection. (People ex rel. Sinkler v. Terry, 108 N. Y. 1 ; Matter of Ahern v. Board of Supervisors of County of Suffolk, 7 A D 2d 538 , 6 N Y 2d 376 ; People ex rel. Dolan v. Lane, 55 N. Y. 217 ; Seavey v. Van Hatten, 276 App. Div. 260 ; Matter of Curlette v. Board of Supervisors of County of Albany, 19 Misc 2d 161 , 10 A D 2d 790 ; Matter of Carp, 179 App. Div. 387 , 221 N. Y. 643 .)

Defendant was convicted in Justice’s Court of the Town of Cheektowaga, Erie County, of a traffic offense. The complainant was a police officer of the town and the prosecutor was the Deputy Town Attorney who appeared over the objection of the defendant-appellant. The latter urges here that his conviction was invalid because the prosecutor lacked authority. It is no longer open to question that petty crimes or offenses of this nature may be prosecuted in courts of special sessions by administrative officers and attorneys other than the District Attorney (People v. DeLeyden, 10 N Y 2d 293 ; People v. Leombruno, 10 N Y 2d 900 ; People v. Schildhaus, 4 N Y 2d 883 ).

Defendant also urges that he was not tried by a court properly convened or a Judge properly sitting, since the Justice of the Peace of the Town of Cheektowaga, at the time of the trial, was

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also the Mayor of the Village of Sloan, a village within the town limits of Cheektowaga. Under section 188 of the Village Law the Mayor is made an ex officio member of the Village Police Department. Defendant argues that the office of Mayor, therefore, was incompatible with that of a Justice of the Peace, who was empowered to act as a Police Justice in the village, in the absence of the Police Justice and Acting Police Justice (Code Grim. Pro., § 60). The problem presented is whether the two positions are so incompatible as to nullify completely all convictions in the particular Justice’s Court.

The Justice of the Peace was regularly elected to that office in November, 1959, and took office on January 1, 1960. He was also elected Mayor of the Village of Sloan. Thereafter, the Attorney-General was petitioned to commence a quo warranto proceeding pursuant to article 75 of the Civil Practice Act to remove the Justice from the office of Mayor on the ground that the office was incompatible with the position of Justice of the Peace. The petition was denied.

We find no likely conflict between the two offices. Moreover, the Justice’s office had never been formally vacated or forfeited, and the defendant-appellant could not collaterally attack his right to the judicial office to which he was elected (People ex rel. Sinkler v. Terry, 108 N. Y. 1 , 13-14). The exclusive remedy was by way of quo warranto (Curtin v. Barton, 139 N. Y. 505 , 511-513; Matter of Carp, 221 N. Y. 643 ).

The judgment of conviction should be affirmed.

Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster concur.

Judgment affirmed.

Cases cited

People v. Rodgers 205 Misc. 1106 Schenectady Cty. Ct. 1954-06-25 p. 253, p. 254
McDonald v. Goldstein 191 Misc. 863 N.Y. Sup. Ct. 1948-02-16 p. 253
People v. Wyner 207 Misc. 673 N.Y. Cty. Ct. 1955-03-18 p. 253, p. 254
Burns v. Wiltse 200 Misc. 355 N.Y. Sup. Ct. 1951-10-25 p. 254
Burns v. Wiltse 303 N. Y. 319 N.Y. 1951-11-02 p. 254
Sulli v. Board of Supervisors 24 Misc 2d 310 N.Y. Sup. Ct. 1960-05-06 p. 254
People v. Scharer 185 Misc. 616 N.Y. Magis. Ct. 1945-06-28 p. 254
People v. Black 156 Misc. 516 Otsego Cty. Ct. 1935-09-11 p. 254
People v. Montgomery 7 Misc 2d 294 N.Y. Ct. Spec. Sess. 1957-09-04 p. 254
People ex rel. Sinkler v. Terry 108 N. Y. 1 N.Y. 1888-01-17 at 13-14 p. 254, p. 255
Ahern v. Board of Supervisors 7 A D 2d 538 N.Y. App. Div. 1959-04-20 p. 254
Ahern v. Board of Supervisors 6 N Y 2d 376 N.Y. 1959-07-08 p. 254
People ex rel. Dolan v. Lane 55 N. Y. 217 N.Y. 1873-12-09 p. 254
Curlette v. Board of Supervisors 19 Misc 2d 161 N.Y. Sup. Ct. 1959-10-01 p. 254
In re the Accounting of Harden 221 N. Y. 643 N.Y. 1917-10-16 p. 254, p. 255
People v. DeLeyden 10 N Y 2d 293 N.Y. 1961-10-19 p. 254
People v. Leombruno 10 N Y 2d 900 N.Y. 1961-11-16 p. 254
People v. Schildhaus 4 N Y 2d 883 N.Y. 1958-05-01 p. 254
Curtin v. Barton 139 N. Y. 505 N.Y. 1893-10-24 at 511-513 p. 255