People v. Kelley

New York County Courts

People v. Kelley

38 Misc. 2d 495, 239 N.Y.S.2d 936, 1963 N.Y. Misc. LEXIS 2298

DecidedJanuary 31, 1963

StatusPublished

This text of 38 Misc. 2d 495 (People v. Kelley) is published on Counsel Stack Legal Research, covering New York County Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Kelley, 38 Misc. 2d 495, 239 N.Y.S.2d 936, 1963 N.Y. Misc. LEXIS 2298 (N.Y. Super. Ct. 1963).

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Opinion

George D. Ogdeft, J.

William Kelley was convicted of being a disorderly person, in violation of subdivision 1 of section 899 of the Code of Criminal Procedure, which renders guilty of being disorderly persons “ Persons who actually abandon their wives or children ” (italics .supplied). The record on appeal in this case contains no testimony that defendant is, in fact, the husband of the complainant, or that the children specified in the information are, in fact, his children. Without such proof of a valid marriage the prosecution under this section must fail and the information be dismissed (People v. Kay, 141 Misc. 574). An additional factor dictating a reversal of this judgment is the statement by the learned Justice in his opinion “ that justice can best be served by considering the welfare of the wife and two children in the family as the primary factor, rather than the fact that the defendant may or may not have committed an actual crime. ’ ’

The judgment of conviction is reversed, the information is dismissed, and the defendant’s bail is exonerated.

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George D. Ogdeft, J.

William Kelley was convicted of being a disorderly person, in violation of subdivision 1 of section 899 of the Code of Criminal Procedure, which renders guilty of being disorderly persons “ Persons who actually abandon their wives or children ” (italics .supplied). The record on appeal in this case contains no testimony that defendant is, in fact, the husband of the complainant, or that the children specified in the information are, in fact, his children. Without such proof of a valid marriage the prosecution under this section must fail and the information be dismissed (People v. Kay, 141 Misc. 574). An additional factor dictating a reversal of this judgment is the statement by the learned Justice in his opinion “ that justice can best be served by considering the welfare of the wife and two children in the family as the primary factor, rather than the fact that the defendant may or may not have committed an actual crime. ’ ’

The judgment of conviction is reversed, the information is dismissed, and the defendant’s bail is exonerated.

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Bluebook (online)

38 Misc. 2d 495, 239 N.Y.S.2d 936, 1963 N.Y. Misc. LEXIS 2298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kelley-nycountyct-1963.

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