A Bronx Estate Litigation Lawyer said that, the defendant herein attacks the ‘pre-arraignment’ procedure now in effect in Bronx County by moving to dismiss the charges against him on the ground that he was subjected to an improper, unauthorized, and unconstitutional deprivation of his rights in being arraigned pursuant to such procedure. On August 2, 1973, at 6:30 P.M., the defendant was arrested and charged with violation of section 120.05 (assault in the second degree) and in a companion case arising from the same set of circumstances, 205.30 (resisting arrest) of the Penal Law. He was taken to Central Booking in the Bronx by the arrest officer and the booking procedure was completed by 8:15 P.M. While the defendant was held in the detention cell, the arresting officer and the complaining witness proceeded to the pre-arraignment room located on the second floor of the Bronx Criminal Court building at 161st Street and Third Avenue, in the County of Bronx. The accusatory instrument was drawn at 8:35 P.M., a written complaint was prepared and sworn to, and the Assistant District Attorney presumably made up his ‘fact sheet’. At this time, the arresting officer and his complainant were excused, and the defendant’s fingerprints were wired to Albany. The fingerprint record commonly known as the NYSIIS sheet was returned at 11:45 P.M., just as Night Court in the Bronx was closing. The case was set for arraignment the following morning before me. Neither the complainant nor the arresting officer was present. Arraignment without the presence of these parties was objected to by defense counsel and he made the motion herein and the matter was adjourned to allow the parties sufficient time to file memoranda on the legality of the procedure. In the interim, the defendant’s counsel moved to parole the defendant and he was so paroled, pending the resolution of this issue.
A Bronx Estate Lawyer said that, the pre-arraignment procedure so described has been in existence in Bronx County since October 1, 1969. It was promulgated by the Police Department with the approval of the District Attorney and the Appellate Division of the First Department with a view towards eliminating the necessity of the police officer’s and the complainant’s presence at the arraignment, thereby saving the police man-hours and likely inconvenience to the complainant. It is interesting to note that Bronx County, alone, continues this practice, although its implementation was attempted in Kings County and New York County. Article 78 proceedings were commenced in both counties, but the issues of constitutionality were never decided, because as a result of the institution of these actions, the procedure was discontinued in each instance and therefore, the said actions were discontinued.
Without conceding that the procedure so described accomplishes its aims, the defendant sets forth several contentions tending to support his claim that the implementation of the procedure is unlawful and violates his basic constitutional rights. Two of these contentions bear serious consideration. The others refer to criminal court and police procedures; are therefore administrative; and should not be the province of this court.