Opinion
May 18, 1955.
Henry G. McDonough for defendant.
Daniel V. Sullivan, District Attorney ( Irvin J. Goldsmith of counsel), for plaintiff.
This application is made by defendant to remove an indictment pending in the County Court, Bronx County, to a term of the Supreme Court for trial. The defendant was indicted on April 27, 1954, in Bronx County, charged with the crime of being an accessory after the fact to the commission of the crime of manslaughter in the first degree. He has not been tried as yet nor does it appear that he will get a trial much before next November or December. That, then, is the basis of this application, which is made pursuant to subdivision 1 of section 344 of the Code of Criminal Procedure, to remove this action to the Supreme Court in order to obtain an early trial. The section provides that the cause may be removed before trial "for good cause shown." Defendant relies on certain cases in which such a motion as this was granted. However, in those cases there appear altogether different grounds for granting such relief. The courts exercised discretion in granting the motions and then only when there were novel and difficult questions of law or when a judge of the County Court was shown to be biased or prejudiced against a defendant. Such is not the case here. On the facts and argument presented, the defendant has not shown good cause for removal of the indictment. The defendant has a right to a speedy and public trial as guaranteed by the Constitution. However, his remedy for any alleged failure to obtain one is not by section 344 of the Code of Criminal Procedure. Other remedies are available to him. The defendant's counsel on the argument of this motion stated that a motion to dismiss the indictment for lack of prosecution was made in the County Court of Bronx County. That was subsequently withdrawn. The court is satisfied that such motion is the appropriate procedure in that tribunal.
Accordingly, the motion is denied.