Opinion
Argued December 5, 1927
Decided January 10, 1928
Appeal from the Supreme Court, Appellate Division, Second Department.
Erastus J. Parsons for appellant.
Elvin N. Edwards, District Attorney ( Bronson Winthrop and Allen T. Klots of counsel), for respondents.
The appellants were convicted in the Police Court of the village of Kings Point, Nassau county, of the violation of a village ordinance. They appealed to the County Court, which reversed the conviction, holding that the ordinance was unconstitutional. The order of reversal was entered June 14, 1926. On July 1, 1926, section 520 of the Code of Criminal Procedure was amended by Laws of 1926, chapter 465, so as to establish a new practice upon appeals in criminal causes.
The People, dissatisfied with the judgment of the County Court, did not follow the practice prescribed by the amendment. They acted on the assumption that section 770 of the Criminal Code continued to define the governing rule upon appeals by the People where the judgment of conviction had been rendered by a minor court. Accordingly they obtained from a justice of the Supreme Court on August 3, 1926, an order allowing an appeal to the Appellate Division, and served a notice of appeal on August 26. The Appellate Division entertained the appeal, and in March, 1927, reversed the judgment of the County Court, and affirmed the judgments of conviction. Thereafter the same court allowed an appeal to this court, and certified a question for review as follows: "Was the order and judgment of reversal of the County Court of Nassau county, rendered June 14, 1926 herein, properly reversed by this court upon the law, as ordered and adjudged by the order and judgment of this court entered herein, March 18, 1927?"
We have held in People v. Kevlon ( 247 N.Y. 192), decided herewith, that section 520 of the Code of Criminal Procedure governs the practice for appeals by the People as well as by defendants. Upon the reversal by the County Court of the judgment of conviction rendered by the police justice, the People could have appealed to this court if a judge of this court or a justice of the Appellate Division had allowed such appeal. Instead, they undertook to appeal to the Appellate Division. That appeal was unauthorized. The judgment thereafter rendered was without jurisdiction, and the defendants upon appropriate motion made to the Appellate Division will be entitled to an order expunging it as void.
The case before us illustrates the wisdom of the ruling that section 520 applies, though the appeal is by the People. If the County Court had affirmed the judgment of conviction, there is no doubt that section 520 would have governed an appeal by the defendants. Any further appeal must have then been taken, not to the Appellate Division, but to this court, and then only by allowance. It would be anomalous to have a review by the Appellate Division upon appeal by the People, and a review by this court upon appeal by the defendant. The anomaly would not end there. A reversal by the Appellate Division and a reinstatement of the conviction, would leave the defendants helpless, for section 520 is explicit to the effect that there shall be no more than two appeals. The statutory scheme would be mutilated in its essential features if a defendant were thus to be deprived of the opportunity to obtain the judgment of this court as to the merits of a conviction.
We are not unmindful of our ruling in People v. Ekerold ( 211 N.Y. 386, decided in June, 1914) to the effect that an appeal may be allowed in criminal causes on questions certified by the Appellate Division after a judgment of affirmance which might otherwise be final. That ruling was made under article 6, section 9, of the Constitution of 1894: "The Appellate Division in any department may, however, allow an appeal upon any question of law which, in its opinion, ought to be reviewed by the Court of Appeals."
We were of the opinion that criminal as well as civil causes were within the scope of that provision. The new judiciary article of the Constitution (Art. VI, § 7), though containing a like provision, says distinctly that it shall apply to civil causes only. As to appeals in criminal causes, the provision is that they may be taken to this court "directly from a court of original jurisdiction where the judgment is of death, and in other criminal cases from an Appellate Division or otherwise as the Legislature may from time to time provide." The Legislature has acted pursuant to this authority, and the rule it has laid down is exclusive of any other.
The appeals in both cases should be dismissed.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Appeals dismissed.