majority">Charles S. Ringwood, J.

There is no merit to the contentions contained in paragraphs “ first,” “ second,” and “ third ” of the affidavit of appeal nor does the affidavit set forth the source of information or grounds of belief as to the matters stated on information and belief.

Paragraph “fourth” states that the proceedings were not public.

From the return it appears that the plea was taken in the private office of Judge Joseph Del Signore, a Justice of the Peace (and practicing lawyer) in the Town of Fort Edward. According to the return, the door was open, his secretary was just beyond the open door and the proceedings were regular. (This I interpret to mean that the Judge had his docket book at hand and conducted the proceedings in the usual manner.) There is no claim that anyone was excluded from the hearing.

The requirement of section 335 of the Code of Criminal Procedure is that the plea be taken in “ open court ”.

I find that what constitutes “open court” is adequately defined in People v. Fiato (206 Misc. 111, 114-115) where the court in commenting on a plea taken in chambers at County Court stated: “ The test, as to whether a court is an ‘ open court ’ should be: First, whether the officers necessary to constitute a court are present. Second, whether the proceeding is conducted openly so far as the public is concerned. It is the determination of this court from the evidence in this case, that the necessary officers were present. If the practice of holding court in chambers is carried on to such extent, that the members of the Bar, members of the press and any of the public who may be interested, have knowledge of the practice and the public is not excluded, then it cannot be said that such court is not being conducted openly. * # * To hold otherwise, would invalidate hundreds and possibly thousands of convictions *499throughout the State, by a strained and unusual construction of a simple term.”

There being no Clerk provided for in Justices’ Courts, I find that the requirements of this definition have been met here. Certainly the practice in Magistrate’s Court has been to hold court in the Justice’s living rooms, kitchens, garages, studies, etc. I am aware of the change in this practice and that the various municipalities are more and more providing adequate courtrooms for the holding of Magistrates’ Courts and although such practice is preferable, it is not as yet mandatory.

Citation profile

Relationships

How this case has been treated — in progress