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PEOPLE STATE NEW YORK v. EDWIN W. KIRK (06/12/69)

COUNTY COURT OF NEW YORK, ROCKLAND COUNTY 1969.NY.42001 <http://www.versuslaw.com>; 310 N.Y.S.2d 155; 62 Misc. 2d 1078 June 12, 1969 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.EDWIN W. KIRK, DEFENDANT Robert R. Meehan, District Attorney (Herman J. Van der Linde of counsel), for plaintiff. Sichol & Hicks (William R. Sichol, Jr., of counsel), for defendant. John A. Gallucci, J. Author: Gallucci


John A. Gallucci, J.

Author: Gallucci

 The defendant was indicted by indictment No. 69-28, and upon arraignment entered a plea of not guilty. Thereafter, he was permitted to withdraw his plea of not guilty and was granted leave to interpose a demurrer to said indictment.

The indictment charges the defendant, under four counts, with:

1. Grand larceny in the first degree, a felony, by false pretenses, under the first two counts of the indictment;

2. Offering to be filed in a public office a false instrument in writing, a felony, in violation of section 2051 of the old Penal Law, under the third count of the indictment; and

3. Falsely representing that he had a degree, a misdemeanor, in violation of section 224 (subd. 3) of the Education Law, under the fourth count of the indictment.

Defendant's demurrer is based on the following grounds: . That the indictment does not conform substantially to the requirements of sections 275 and 276 of the Code of Criminal Procedure;

2. That more than one crime is charged in the fourth count of the indictment within the meaning of sections 278 and 279 of the Code of Criminal Procedure;

3. That the facts stated, as to each count, do not constitute a crime;

4. That the fourth count of the indictment, on its face, is barred by the Statute of Limitations since the acts complained of occurred more than two years prior to the finding of the indictment;

5. That section 224 (subd. 3) of the Education Law is unconstitutional; and

6. That each count, as alleged, is so uncertain and indefinite as to be violative of the Constitutions of the United States and of the State of New York.

The first four grounds of demurrer set forth by the defendant are provided for in subdivisions 2, 3, 4 and 5 of section 323 respectively of the Code of Criminal Procedure. The sixth is in effect a repetition of the first and will be so treated by the court.

Defendant's contention that section 224 (subd. 3) of the Education Law is unconstitutional: -- while it is not set forth in section 323 of the Code of Criminal Procedure as a ground for demurrer, the court will, ...


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