The People of the State of New York, Respondent, v. Nellie Tomasso, Appellant

The People of the State of New York, Respondent, v. Nellie Tomasso, Appellant. Fourth Department, May 10, 1916. Intoxicating liquors—jurisdiction of City Court of Corning to try defendant for violation of Liquor Tax Law, section 30, subdivision E. The City Court of the City of Corning has no jurisdiction to try a defendant charged with violating subdivision E of section 30 of the Liquor Tax Law in permitting certain premises to become disorderly. Appeal by the defendant, Nellie Tomasso, from a judgment of the County Court of Steuben county, entered in the office of the clerk of said county on the 31st day of January, 1916, affirming a judgment of the City Court of the City of Corning, rendered against her on the 19th day of September, 1914, convicting her of permitting certain premises to become disorderly. An appeal is also taken from the original judgment of the City Court. Thomas F. Rogers, for the appellant. Edwin S. Brown, District Attorney, for the respondent. [MAJORITY — Per Curiam:] 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 of 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.