Defendant moves for an order directing a Police Justice to file his return in the appeal herein.
There apparently has been an inadvertent error in citing the particular subdivision of the Vehicle and Traffic Law of which defendant was convicted in defendant’s affidavit submitted in connection with her appeal, as well as in defendant’s instant order to show cause.
The conviction and sentence are obviously predicated on subdivision 5 of section 70 of the said statute and not subdivision 2 thereof. This is confirmed by the affidavit submitted in opposition.
We reluctantly conclude that the Police Justice is somewhat disingenuous in urging that the inadvertent error results in there being ‘ ‘ no conviction of said defendant before this court, ’ ’ therefore rendering it ‘ ‘ impossible for your deponent to file a Return herein.”
Defendant has been convicted of a serious crime and grave punishment has been imposed. Our criminal law, in either its substantative or adjective aspects, was never intended to bar a defendant from a review of his conviction by an appellate court.
The venerable maxim that a litigant is entitled to his “ day in court ” is not limited to a trial court. It necessarily encompasses an opportunity to be made available to a defendant, if he is so-minded, to urge before an appellate court that he has, in fact or in law, been deprived of his day in court by virtue of an unlawful or erroneous determination by a lower court.
It ill-behooves those responsible for the prosecution or adjudication of criminal proceedings to invoke picayune technical objections to bar appellate review. Short of a clear showing that "the People have been prejudiced, no appellate court should refuse to entertain jurisdiction where there have been genuine and reasonable efforts to perfect such appeal. The same criteria should be and are almost universally applied by prosecutors and lower courts.
Defendant’s motion is granted. The Police Justice is directed to file his return within 10 days after service of a copy of the order with notice of entry.
Submit order.