Bentley v. Macduff

205 Misc. 454, 128 N.Y.S.2d 828, 1954 N.Y. Misc. LEXIS 2332

Opinion

Bookstein, J.

The 1953 amendment of section 335-a of the Code of Criminal Procedure, in my opinion, was to express a clear legislative intention, to establish a uniform warning to be given in all cases, involving a charge of violating the Vehicle and Traffic Law. The enactment was for the express purpose of overcoming the decisions by the courts under the section as it existed prior to that amendment. See memorandum of State Department of Taxation and Finance, with respect to Assembly Introductory Bill Number 1086, Print No. 1105, which became chapter 288 of the Laws of 1953, resulting in the present form of section 335-a of the Code of Criminal Procedure.

That section requires a warning substantially in the form prescribed thereby. In this case the warning was concededly given in the precise words of the statute. It was therefore a complete, rather than a mere substantial, compliance.

This court is of the opinion that the warning, or instruction, or information, required to be given by section 335-a of the Code of Criminal Procedure, given in the precise words of that section, authorized the action of respondent.

I am not unmindful of the fact that this determination is contrary to the determination made in Matter of Eckerson v. Macduff (204 Misc. 698). With great respect for that determination, I nevertheless cannot find myself in agreement therewith.

Motion to dismiss petition granted.

Submit order.