People v. Murphy

38 Misc. 2d 496, 236 N.Y.S.2d 469, 1963 N.Y. Misc. LEXIS 2365

• Court: New York County Courts
• Decided: January 14, 1963
• Status: Published

Opinion

John- J. Walsh, J.

The defendant was convicted after trial of a traffic infraction of speeding, on September 4, 1962 before Hon. John B. Cosgrove, Justice of the Peace, Town of Kirkland.

On September 24, 1962, the defendant filed a notice of appeal on the Justice and on October 31, 1962 defendant filed an affidavit of errors upon the Justice. Copies of each paper were duly served upon the District Attorney. No return has been filed. The defendant moves to compel a return to be filed and the District Attorney moves to dismiss the appeal.

It is conceded that the affidavit of errors was not served within the 30-day statutory period for taking an appeal (Code Crim. Pro., § 751). The defendant contends that the notice of appeal filed within the 30-day period constitutes the compliance with the statute and that he was prevented from filing the affidavit of errors because he did not receive the stenographic transcript of the testimony until some seven weeks after the trial, on or about October 23, 1962.

Although defendant makes a persuasive argument, this court is without power to waive the strict requirements for the taking of an appeal from a Court of Special Sessions. (See People v. Whittman, 23 Misc 2d 128 [Oneida County Ct., 1959; notice of appeal is a nullity]; People v. Alpert, 28 Misc 2d 182 [Oneida County Ct., 1961; proof of service on Magistrate]; People v. Van Slyke, 31 Misc 2d 434 [Oneida County Ct., 1961; failure to serve affidavit on Magistrate not cured by service upon District Attorney]; People v. Baker, 10 N Y 2d 851 [1961].)

Motion to compel return denied. Cross motion to dismiss the appeal granted.