
    In the Matter of Maurice Fredette, Petitioner, against Joseph P. Kelly, as Commissioner of Motor Vehicles, Respondent.
    Supreme Court, Special Term, Washington County,
    October 22, 1956.
    
      John J. Heckman for petitioner.
    
      Jacob K. Javits, Attorney-General (Edward Siegfried and Richard H. Shepp of counsel), for respondent.
   J. Clarence Herlihy, J.

This matter was brought on by way of motion and after examining the papers of the respective parties, the court directed that a hearing be held, which took place in the city of Glens Falls on September 6, 1956.

The court at the time of the hearing after listening to the proof concerning the arrest and plea in the town of Stillwater found that it was a valid arrest and conviction.

With reference to the hearings held before Judge Huggins, the first one on or about June 6, 1955 and the second on February 11, 1956, the court finds that there was not a proper compliance with section 335-a of the Code of Criminal Procedure in either of these arrests and convictions. The charge against the petitioner being criminal in nature, it is the duty of the People to strictly comply with this and the various other sections of the Penal Law.

The testimony of Judge Huggins himself is sufficient to uphold the position of the petitioner.

On page 29 of the testimony, he was asked the following question and made the following answer: “ Question. What did you tell him with reference to Section 335-a of the Criminal Code?

“ Answer. I read this down here at that time. I read this, oft after he pleaded guilty.”

This was in reference to the charge in June of 1955.

With reference to the charges on February 11, 1956, on page 34 of the testimony, he was asked the following question by the court and made the following answer:

“ Q. What did you say to him about Section 335-a, if anything at all?
‘ ‘ A. The trooper had it all right. 1 told him to read it off. ’ ’

Without making any further observations concerning the proceedings, the court finds that the petitioner was not duly advised as to his rights and therefore, annuls and cancels the order of Honorable Joseph P. Kelly, Commissioner of Motor Vehicles, revoking the driver’s license and certificate of registration of Maurice Fredette and orders that the commissioner return forthwith said license and certificate of registration of Maurice Fredette.

Submit order accordingly.  