Bezio v. Berglund

Order unanimously reversed, without costs of this appeal to any party, and motion granted. Memorandum: Petitioner seeks an order directing respondents to remove from the records of the City Court of Jamestown every entry which shows or supports a purported conviction of petitioner, on August 1, 1957, of the crime of driving while intoxicated. The petition alleges that no written information under oath charging petitioner with such crime “was made to or was before said City Court” at the time of the purported conviction. This allegation is not denied by answer or otherwise and thus stands admitted. Nor does the “ Traffic Docket ” of the court, on its face, refute that allegation. That 992 being so the City Court had no jurisdiction to pronounce the judgment of conviction and. the record of such conviction is a nullity and must be expunged. (People v. Hamm, 9 N Y 2d 5; People v. Scott, 3 N Y 2d 148; People v. Jacoby, 304 N. Y. 33; People ex rel. Farley v. Crane, 94 App. Div. 397; People ex rel. Davis v. Sheriff, 3 Misc 2d 231; People v. Halling, 203 Misc. 428.) (Appeal from order of Chautauqua Supreme Court resettling a previous order denying petitioner’s application to correct Jamestown City Court records by removing therefrom a conviction for driving while intoxicated entered on a plea of guilty.) Present — Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.