People v. Marder

141 Misc. 892, 254 N.Y.S. 207, 1931 N.Y. Misc. LEXIS 931

Opinion

Per Ctjriam.

The return of the magistrate discloses that the defendant upon being arraigned on July 25, 1931, pleaded “ not guilty,” and the trial of the action was adjourned to August 5, 1931. On the last-mentioned date the charge was again read and she was again asked to plead to the complaint. She remained silent. “ She was again asked if the officer’s statement in the complaint were true. She admitted that it was. She was thereupon sentenced to pay a fine of five dollars or in default of payment to serve one day in the City Prison.”

It further appears from the return that “ there are no stenographic minutes.”

Accompanying the return and made a part thereof is a copy of the complaint. Indorsed on the back thereof appears the following statement, to wit:

“ Defendant pleads not guilty Tried and found guilty date Aug. 5......

Sentence

Fined $5 or in default of payment not to exceed 1 day in City Prison

“ ALFRED E. STEERS.

“ City Magistrate ”

The state of this record, particularly as no stenographic minutes of the proceedings were taken, is such that we cannot definitely determine whether the defendant intended to enter the plea of guilty on the date set for the trial of the action. The statement in the magistrate’s return is in conflict with the indorsement made by the magistrate on the complaint. The return indicates that the alleged plea of “ guilty ” was accepted by the magistrate while the indorsement states that after a trial the defendant was found guilty.

We believe that the interests of justice demand that the original plea of not guilty be restored and the City Magistrates’ Court ordered to proceed with the trial on the charge specified in the complaint.

All concur; present, Kernochan, P. J., Fetherston and Salomon, JJ.