People v. Tomasso

Appellate Division of the Supreme Court of New York

People v. Tomasso

172 A.D. 711, 159 N.Y.S. 197, 1916 N.Y. App. Div. LEXIS 6532

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 10, 1916

StatusPublished

This text of 172 A.D. 711 (People v. Tomasso) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Tomasso, 172 A.D. 711, 159 N.Y.S. 197, 1916 N.Y. App. Div. LEXIS 6532 (N.Y. Ct. App. 1916).

Pincite

Opinion

Per Curiam:

The sole question which needs to be considered on this appeal is whether the City Court of the City of Corning had jurisdiction to try the defendant for the offense of which she has been convicted. The defendant appealed to the County Court, which affirmed the judgment of the City Court.

The defendant was charged with violating subdivision E of section 30 of the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], as amd. by Laws of 1910, chap. 494) in suffering and permitting certain premises situate in the city of Corning, for which she held a liquor tax certificate and where she conducted a saloon, to become disorderly. Subdivision E makes it unlawful for any person to suffer or permit to become disorderly the premises where the traffic in liquor is*carried on. Subdivision 2 of section 36 of the Liquor Tax Law (as amd. by Laws of 1910, chap. 485) provides, inter alia, that any person who violates any provision" of section 30 shall be guilty of a misdemeanor and upon conviction therefor shall be punished by a fine or imprisonment, or both, shall forfeit the liquor tax certificate and be deprived of all rights and privileges thereunder and of any right to a rebate. Subdivision 1 of section 37 provides: “Except as otherwise provided by this chapter, all proceedings instituted for the punishment of any violations of the provisions of this chapter, the penalties for which are prescribed in subdivision one, two, three or four of section thirty-six, shall be prosecuted by indictment by the grand jury of the county in which the crime was committed, and by trial in a court of record having jurisdiction for the trial of crimes of the grade of felony;” except that any magistrate of the county in which such violations occur shall ha,ve jurisdiction to make a preliminary examination. Subdivision 2 of section 37 provides that Courts of Special Sessions shall have exclusive jurisdiction to try and determine all violations of the Liquor Tax Law defined by subdivision 5 of section 36 as a misdemeanor. Subdivision 5 of section 36 (as amd. by Laws of 1910, chap. 485) provides that any willful violation oy any person of any provision of the Liquor Tax Law for which no punishment or penalty is otherwise provided shall be a misdemeanor.

It will thus be seen that unless there is some other provision [713]*713of law, the crime with which the defendant was charged and of which she was convicted was required to he prosecuted by indictment and in a court of record having jurisdiction to try felonies. Although the point is distinctly made in the appellant’s brief that the City Court had no jurisdiction, it is not referred to in any way in the brief of the district attorney; nor does it appear that the point was called to the attention of the County Court. It is not referred to in the opinion of the county judge. We know of no provision in the city charter of the city of Corning (Laws of 1905, chap. 143, as amd.) or in any other statute which modifies the provisions of the Liquor Tax Law in that regard. None has been called to our attention and we have been unable to find any.

It is unnecessary to consider the other points, as this seems to be fatal to the judgment. The judgment of conviction should, therefore, be reversed and the defendant discharged.

All concurred.

Judgment of County Court and judgment of City Court reversed and defendant discharged.

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Per Curiam:

The sole question which needs to be considered on this appeal is whether the City Court of the City of Corning had jurisdiction to try the defendant for the offense of which she has been convicted. The defendant appealed to the County Court, which affirmed the judgment of the City Court.

The defendant was charged with violating subdivision E of section 30 of the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], as amd. by Laws of 1910, chap. 494) in suffering and permitting certain premises situate in the city of Corning, for which she held a liquor tax certificate and where she conducted a saloon, to become disorderly. Subdivision E makes it unlawful for any person to suffer or permit to become disorderly the premises where the traffic in liquor is*carried on. Subdivision 2 of section 36 of the Liquor Tax Law (as amd. by Laws of 1910, chap. 485) provides, inter alia, that any person who violates any provision" of section 30 shall be guilty of a misdemeanor and upon conviction therefor shall be punished by a fine or imprisonment, or both, shall forfeit the liquor tax certificate and be deprived of all rights and privileges thereunder and of any right to a rebate. Subdivision 1 of section 37 provides: “Except as otherwise provided by this chapter, all proceedings instituted for the punishment of any violations of the provisions of this chapter, the penalties for which are prescribed in subdivision one, two, three or four of section thirty-six, shall be prosecuted by indictment by the grand jury of the county in which the crime was committed, and by trial in a court of record having jurisdiction for the trial of crimes of the grade of felony;” except that any magistrate of the county in which such violations occur shall ha,ve jurisdiction to make a preliminary examination. Subdivision 2 of section 37 provides that Courts of Special Sessions shall have exclusive jurisdiction to try and determine all violations of the Liquor Tax Law defined by subdivision 5 of section 36 as a misdemeanor. Subdivision 5 of section 36 (as amd. by Laws of 1910, chap. 485) provides that any willful violation oy any person of any provision of the Liquor Tax Law for which no punishment or penalty is otherwise provided shall be a misdemeanor.

It will thus be seen that unless there is some other provision [713]*713of law, the crime with which the defendant was charged and of which she was convicted was required to he prosecuted by indictment and in a court of record having jurisdiction to try felonies. Although the point is distinctly made in the appellant’s brief that the City Court had no jurisdiction, it is not referred to in any way in the brief of the district attorney; nor does it appear that the point was called to the attention of the County Court. It is not referred to in the opinion of the county judge. We know of no provision in the city charter of the city of Corning (Laws of 1905, chap. 143, as amd.) or in any other statute which modifies the provisions of the Liquor Tax Law in that regard. None has been called to our attention and we have been unable to find any.

It is unnecessary to consider the other points, as this seems to be fatal to the judgment. The judgment of conviction should, therefore, be reversed and the defendant discharged.

All concurred.

Judgment of County Court and judgment of City Court reversed and defendant discharged.

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Bluebook (online)

172 A.D. 711, 159 N.Y.S. 197, 1916 N.Y. App. Div. LEXIS 6532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-tomasso-nyappdiv-1916.