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DISTRICT COURT OF NEW YORK, FOURTH DISTRICT, SUFFOLK COUNTY 1969.NY.41669 <>; 303 N.Y.S.2d 151; 60 Misc. 2d 559 May 21, 1969 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.STEPHEN CANNISTRA, DEFENDANT Peter Dounias, Town Attorney, for plaintiff. Harry Rosenberg for defendant. John Copertino, J. Author: Copertino

John Copertino, J.

Author: Copertino

 At 1:00 p.m. on October 15, 1968, the defendant appeared at a landfill site maintained by the Town of Smithtown on the north side of Jericho Turnpike and Montclair Avenue in the Town of Smithtown, driving a black Ford Diesel sanitation truck bearing the colors of J & S Sanitation.

The defendant unceremoniously proceeded to unburden the truck of its load -- garbage, euphemistically referred to as "refuse" by the sensitive, sophisticated, artistic and intelligentsia. Just as unceremoniously, one Andrew Wolke, who referred to himself as a town sanitation foreman at this site, proceeded to wade through the pile, sifting and examining its contents. The record is unclear as to how extensive the examination was. The court did sense, however, a feeling of regret, dismay, and frustration on the part of Mr. Wolke that the entire load could not be preserved as evidence for the court. Instead, three items were selected at random and were retained by him as evidence. The court inconsequentially infers as the first of its inferences that the remainder of the load has long since been "plowed under," covered with sand, and will someday support frolicking children at play or some other glorious activity. (There is reasonable doubt, however, that the site will displace Mount Olympus.) Not so, however, with the three items selected by the foreman. Over the objection of defense counsel these three items have been received in evidence and are likely to be forever entombed and incorporated in the records of this court.

The first of these items is an unopened letter from a veterans' organization addressed to a person on "Morris Street, Brentwood, N Y 11717" as the addressee. The second is an issue of the Journal of Practical Nursing bearing a postal label, showing a resident of "Feurising Av. Bohemia N Y 11716" as the addressee. The third is an advertising supplement of one of the three major newspapers circulated in our county, alerting the intended reader a "resident" of "Lincoln Avenue, Bohemia N Y 11716" of all the advantages of shopping in a community not far from Bohemia and setting forth some 16 pages of "Columbus day values." The last two items are somewhat wrinkled and encrusted but cannot and do not prevent complete perusal. The first item is in somewhat better condition and the message has by choice remained a mystery. All three, however, are long since moribund and almost eerily cry out for a more suitable resting place then has befallen their lot.

Be as it may, about an hour before, the People's only witness, Wolke, had seen the very same truck with the defendant as its helmsman stopping, picking up garbage, and proceeding house to house in Bohemia, an area wholly within the Township of Islip; the exact street or streets on which the truck was seen was not testified to. At that time the truck was about five miles from both the nearest facility in Islip Town and the Smithtown landfill site. Wolke's Bohemian observations did not result from a planned surveillance but rather from fortuitously sighting the truck while he was en route from Islip Town to Smithtown Town while on an errand for parts. The surveillance was of short duration, Wolke having failed to follow the truck from Bohemia to Smithtown.

Having concluded that the defendant had transported and disgorged Islip garbage in Smithtown, Wolke issued and served a summons on the defendant calling for the latter's appearance before this court on November 12, 1968. The charge stated thereon was "transporting solid waste across the town line" in violation of "Smithtown Code 21-17-B."

The records of this court indicate that an information was laid on November 12, 1968, that the defendant did not appear on said day, that a summons was issued by the court on November 18, 1968, returnable on December 2, 1968, that the defendant was arraigned thereafter, and pleaded not guilty.

The information charges the defendant with bringing garbage collected outside the Town of Smithtown to a Smithtown Town Dump in violation of section 17-B of chapter 21 of the Ordinances of the Town of Smithtown. The information is based on the direct knowledge of Andrew Wolke, the People's only witness. This action was tried before the court without a jury.

Defendant maintains that this court is without jurisdiction because the summons, "as the initiatory pleading," was void when issued by Mr. Wolke.

The law is clear that a summons is not a pleading (People v. Scott, 3 N.Y.2d 148, 150-151; see, also, Code Crim. Pro., ยง 145).

The function of a summons "is to give notice to a person that there is a complaint against him on a definite charge which it is desired to investigate. It constitutes a somewhat peremptory invitation to come before the magistrate to share or assist in such investigation. In my judgment it is intended to obviate the usual procedure of arrest with or without warrant in certain minor crimes * * * It is a process in the nature of a subpoena leading to an investigation, but not to a definite trial and punishment, unless the person summoned elects to proceed to a trial without issuance of a formal warrant." (City of Buffalo v. Neubeck, 209 App. Div. 386, 389.)

When Mr. Wolke issued the summons, it operated to apprise the defendant that an allegation would be made against him to a Magistrate. Its issuance did not commence a criminal proceeding (Matter of Doran v. District Ct. of Nassau, 45 Misc. 2d 212, 215.) It was an invitation to appear and the defendant was "free to disregard it" (People v. Preble, 39 Misc. 2d 411, 415; see, also, People v. Boback, 23 N.Y.2d 189, 195) -- which the defendant did. Service of the summons did not confer jurisdiction (People v. Scott, supra, p. 151; City of Buffalo v. Neubeck, supra, p. 390; Matter of Coville v. Bennett, 57 Misc. 2d 838-839).

Jurisdiction was conferred only when Mr. Wolke swore to the information before one of the Judges of this court (People v. Preble, supra; Matter of Coville v. Bennett, supra). Irregularities or defects prior thereto are of no consequence (cf. People v. Butler, 18 Misc. 2d 904). Assuming that there was no authority whatsoever -- the provisions of section 10 of the Municipal Home Rule Law and Local Law 36 A-2 of the Town of Smithtown to the contrary not withstanding -- for Mr. Wolke to issue and serve the summons, it is difficult to see how this could operate to foreclose jurisdiction for all time or how it could have even prejudiced the defendant in any way where he chose not to appear and where it required a criminal summons issued by the court after an information was properly laid to bring the defendant before the court.

This court is of the opinion that jurisdiction over the defendant was properly obtained and was not affected by any defects, irregularities, or impotencies attendant to the issuance and service of the summons prior to the time that the information was sworn to. The critical issue here is whether the court can infer the defendant's guilt from the evidence before the court. The defendant maintains that this court cannot infer that garbage being collected in the Town of Islip was ultimately taken to Smithtown for disposal. Here, proof of guilt must depend upon circumstantial evidence. There is direct evidence that the defendant was collecting garbage house to house in the Town of Islip. There is direct evidence that within the hour the defendant driving the same truck appeared at the Smithtown landfill site and ...

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