Opinion
November 3, 1911.
Robert S. Johnstone, Assistant District Attorney, for the appellant.
Benjamin N. Cardozo, for the respondent.
The defendant was indicted in the Supreme Court. On June 28, 1911, he served upon the district attorney a notice that a motion would be made on Thursday, June 29, 1911, before Mr. Justice McCALL, presiding at a Criminal Term of the Supreme Court, Part 1, for an order transferring such indictment to the Court of General Sessions of the Peace in and for the city and county of New York for trial. By what appears to be an extract of the minutes of the Trial Term, Part 1, of the Supreme Court, held on Thursday, June 29, 1911, it is stated that counsel for the defendant moved for an order of the court transferring the indictment to the Court of General Sessions, and after hearing counsel the court stated that the Supreme Court in which the indictment was found had adjourned for the summer vacation, but the Court of General Sessions would, during the summer months, have at least three of its several parts in operation, and that there was thus afforded an opportunity for the defendant to be heard speedily in defense; that the court, after a careful consideration of the entire subject, could find nothing to justify him in a denial of the application, and the motion was granted. What is contained in the minutes is also printed as an opinion of the learned trial justice presiding at the Criminal Term, and annexed to the record is an affidavit of the assistant district attorney, stating that the foregoing decision or opinion rendered on July 13, 1911, is the only decision or opinion rendered by the justice holding the Trial Term; and from this order or determination the district attorney appeals.
The first question presented is, whether or not there is any decision or determination presented in the record from which an appeal can be taken. The question must be determined by the record as presented to us. By subdivision 6 of section 22 of the Code of Criminal Procedure the Supreme Court has jurisdiction, "by an order, entered in its minutes, to send any indictment found therein for a crime triable at the County Court or the Court of General Sessions of the city and county of New York, to such court." By subdivision 3 of section 51 of the same Code the Court of General Sessions of the city and county of New York has jurisdiction "to try and determine any indictment found in the Supreme Court in said city and county, which has been sent by order of that court to and received by the Court of General Sessions therein." Considering these two provisions, the Supreme Court had jurisdiction to send this indictment to the Court of General Sessions, and the Court of General Sessions had jurisdiction to try and determine the indictment. There is no provision in the Code of Criminal Procedure, however, which allows a defendant to move to have an indictment transferred from the Supreme Court to the Court of General Sessions. Section 343 of the Code of Criminal Procedure provides that all writs and other proceedings theretofore existing for the removal upon the application of the defendant of criminal actions prosecuted by indictment from one court to another before trial are abolished. Section 344 provides for cases in which an indictment may be removed on the application of the defendant. That section limits the removal on the application of the defendant from a County Court or City Court to a term of the Supreme Court held in the same county for good cause shown; and then from the Supreme Court or County Court or City Court to a term of the Supreme Court held in another county on the ground that a fair and impartial trial cannot be had in the county or city where the indictment is pending. Section 346 provides that this application for an order of removal must be made to the Supreme Court, at a Special Term in the district, upon notice of at least ten days to the district attorney of the county where the indictment is pending. The court had jurisdiction to send the indictment to the Court of General Sessions for trial. Such removal undoubtedly must be by action of the court while the court was in session.
The first question raised by the respondent is, that this order is not appealable, and that question must be determined by the record as it is presented. There is nothing in this record to show that the term at which this order was made had at the time the order was made actually adjourned. There is, therefore, nothing to show that the term of the court had for any reason lost jurisdiction of the indictment, or was without authority to exercise such jurisdiction as was conferred upon it by law. That being so, we have on the record an order entered in the minutes of the court in which, although it was recited that the order was granted on motion of the defendant, the court had exercised its undoubted jurisdiction and had transferred the indictment to the Court of General Sessions. Nothing appears, therefore, in this record to justify the court in entertaining the appeal. In People v. McLaughlin, No. 1 ( 2 App. Div. 408) this court entertained an appeal from an order of the Special Term denying a motion to remove a criminal case from the county of New York to another county and reversed the order. Upon an appeal to the Court of Appeals ( 150 N.Y. 365) that court apparently upheld the jurisdiction of the Appellate Division to review that order and reversed the judgment of conviction, saying: "We are unable to perceive any proper ground upon which the action of the Appellate Division can be sustained, so far as it failed to set aside the proceedings and trial." In several cases the Appellate Division has entertained appeals from orders entered upon motion to remove an indictment under subdivision 2 of section 344 of the Criminal Code. ( People v. Georger, 109 App. Div. 111; People v. Bartels, 110 id. 922; People v. Jackson, 114 id. 697; People v. Sarvis, 69 id. 604; People v. Butts, 121 id. 226; People v. Berdy, 103 id. 595.) This court has, however, held in Matter of Montgomery ( 126 App. Div. 72; appeal dismissed, 193 N.Y. 659) that an appeal in a criminal action can only be taken in such cases as are allowed by the Code of Criminal Procedure. If this appeal, therefore, was from an order in a criminal action — and in the record as presented to us it must be so considered — it is clear that no appeal lies to this court from an order of the Trial Term of the Supreme Court. On the record, therefore, on which this appeal was heard our conclusion is that the order was not appealable, and the appeal must, therefore, be dismissed.
McLAUGHLIN, LAUGHLIN, CLARKE and MILLER, JJ., concurred.
Appeal dismissed. Order to be settled on notice.