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People v. Polle

9 N.Y.2d 349 Court N.Y. Decision date 1961-03-30 English

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p. 349
The People of the State of New York, Respondent, v. Harold E. Polle, Appellant.
Argued March 21, 1961;
decided March 30, 1961.
p. 350
John J. Leonard for appellant.
I. The information was insufficient as a matter of law to confer any jurisdiction on the Court of Special Sessions. (Shappee v. Curtis, 142 App. Div. 155 ; People ex rel. Livingston v. Wyatt, 186 N. Y. 383 ; People v. Scott, 3 N Y 2d 148 ; People v. Sledge, 192 Misc. 934 ; Matter of Bennett, 258 App. Div. 368 .) II. Whatever authority is conferred by section 74-b of the Vehicle and Traffic Law to the persons therein enumerated arises only in cases where a uniform traffic ticket has been served and, even then, is narrowly limited. III. The inclusion by the Magistrate in his return of a uniform traffic ticket does not defeat the argument of appellant.
John J. Conway, Jr., District Attorney (Kenneth J. Smith of counsel), for respondent.
I. The information was properly sworn to before the deputy sergeant. II. Courts will reject the literal meaning of words to conserve the spirit and intent of an act over the mere letter. (Smith v. People, 47 N. Y. 330 .) III. Any defect as to the verification of the information had been cured before objection was raised by defendant. (People v. Nitzberg, 289 N. Y. 523 ; Albrecht v. United States, 273 U. S. 1 ; People v. Scott, 3 N Y 2d 148 .)

Defendant was convicted of a violation of subdivision 5 of section 70 of the Vehicle and Traffic Law—a misdemeanor. The information was sworn to before a sergeant of the Sheriff’s office who was not a notary public. He had no authority to administer the oath unless authorized by section 74-b (now § 208) of the Vehicle and Traffic Law. That section, however, authorizes him to take oaths only where “ a traffic summons has been served ’ ’. The People’s witness, the arresting officer, flatly testified that no traffic summons had been served. Immediately after the establishment of this fact, defendant moved for a dismissal of the information. The motion should have been granted since the court had no jurisdiction (People v. Scott, 3 N Y 2d 148 , 151). We do not feel that we may “ reject the literal meaning” of section 74-b as respondent suggests.

The judgment of the County Court should be reversed, the judgment of conviction vacated, and the information dismissed.

p. 351
Judges Fuld, Froessel, Yaw Yoorhis, Burke and Foster concur in Per Curiam opinion; Chief Judge Desmond and Judge Dye dissent and vote to affirm upon the ground that this was, at worst, an irregularity which could not affect jurisdiction.

Judgment reversed and the information dismissed.

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