Opinion
2003-1694 SCR.
Decided May 20, 2004.
Appeal by defendant from judgments of the District Court, Suffolk County (E. Sperzel, J.), rendered June 21, 2002, convicting him of violating sections 45-4 and 45-6 of the Code of the Town of Brookhaven and imposing sentences.
Judgment of conviction of violating section 45-6 of the Code of the Town of Brookhaven reversed upon the law, information dismissed and fine remitted.
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
Judgment of conviction of violating section 45-4 of the Code of the Town of Brookhaven affirmed.
The accusatory instrument charging defendant with a violation of section 45-6 of the Town Code is jurisdictionally defective and must be dismissed ( see People v. Celia Durao, No. 2003-1693 SCR, decided herewith).
Defendant's contention that the filing of the accusatory instruments subsequent to the return date set forth in the appearance tickets mandates dismissal of said instruments is without merit. A criminal action can be commenced only in a local criminal court by the filing in said court of either an information, simplified information, misdemeanor complaint or felony complaint (CPL 100.05). An appearance ticket, however, is not an accusatory instrument, and its filing does not give a criminal court jurisdiction over a defendant. Its purpose is merely to compel a person's appearance in court at a time when arraignment may be had upon a properly filed accusatory instrument (CPL 150.10; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 150.10 at 563-564). Although section 150.50 (1) of the CPL requires that an accusatory instrument be filed with the court at or before the return date of the appearance ticket, the statute does not impose any penalty upon the People for their failure to comply with said requirement. As a result, an aggrieved defendant has no available recourse other than, in the instances where defendant appeared on the return date, to start the clock running for speedy trial purposes ( People v. Stirrup, 91 NY2d 434; see also People v. Han, 166 Misc 246, 248; People v. Fysekis, 164 Misc 2d 627, 630; People v. Consolidated Edison Co. of N.Y., 153 Misc 2d 595; People v. D'Alessio, 134 Misc 2d 1005, 1009; contra People v. Consolidated Edison Co., 161 Misc 2d 907 ; People v. Consolidated Edison Co., 159 Misc 2d 354). Furthermore, it should be noted that, as defendant's counsel concedes, defendant received notice prior to the return date that the matter was adjourned and that the People filed the accusatory instruments before the adjourned date.
The accusatory instrument which charged defendant with violating section 45-4 of the Code of the Town of Brookhaven was legally sufficient (CPL 100.15, 100.40; see also People v. Casey, 95 NY2d 354, 366; People v. Arcidicono, 75 Misc 2d 294, affd 79 Misc 2d 242 [App Term, 9th 10th Jud Dists 1974]). Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilty was not against the weight of the evidence ( see CPL 470.15).
McCabe, P.J. and Rudolph, J., concur.
Angiolillo, J., taking no part.