In People v. Carroll (105 App. Div. 147) the Appellate Division of the third department dismissed an appeal from an order denying a motion for the appointment of a referee to take a deposition to be used upon a motion to set aside an indictment, saying: "It is not claimed that there is any statutory provision authorizing the appeal," and, alluding to section 517 of the Code of Criminal Procedure, "This section grants no authority to take the appeal which has been here attempted."Summary of this case from Matter of Montgomery
George Addington, District Attorney, and Robert H. McCormic, Assistant District Attorney, for the motion.
Mark Cohn and Peter A. Delaney, opposed.
The defendant has been charged by indictment with the felonious abduction of one Lottie Peters, an infant under the age of eighteen years, to wit, of the age of sixteen years. Upon motion the court directed the district attorney to deliver to the defendant's attorney the evidence taken before the grand jury upon which the indictment was found. This the district attorney was unable to do because the evidence was not preserved. Upon the indictment appear the names of the witnesses, Lottie Peters and Gertie Bennett. The defendant has made a motion to dismiss the indictment as secured upon insufficient evidence. In support of that motion he desires the affidavit of Gertie Bennett to the effect that she did not corroborate the evidence of Lottie Peters as to her age and gave no testimony thereupon before the grand jury. The witness has refused to make affidavit, and application was made to the Special Term to examine the witness for the sake of procuring her deposition to be used upon the said motion. This application was by the Special Term denied on the ground of want of power to grant the same, and from that denial an appeal was taken to this court. This motion is made by the district attorney to dismiss the appeal as unauthorized.
The motion should be granted. In People v. Bissert ( 71 App. Div. 118) it is held that the Code of Criminal Procedure prescribed the procedure which must be followed in all criminal cases. In People v. Trezza ( 128 N.Y. 529) it is held that the right of appeal in criminal cases is statutory only, and in the absence of a statute authorizing it in a given case no appeal can be taken. This rule is reiterated in People v. Mayhew ( 151 N.Y. 610, 611). (See, also, People v. Rutherford, 47 App. Div. 209. ) It is not claimed that there is any statutory provision authorizing the appeal. The right of the defendant to appeal to the Appellate Division is found in section 517 of the Code of Criminal Procedure. This section grants no authority to take the appeal which has been here attempted.
It is urged by the defendant's counsel that the appellate courts have assumed the right of review in cases not within the provisions of section 517 of the Code of Criminal Procedure. There may be cases where jurisdiction has been wrongfully assumed or denied where public policy will lead an appellate court to entertain an appeal to which no right is given to a party under the statute, to the end that a bad precedent may not be established. (See People ex rel. Robinson v. Ferris, 36 N.Y. 219. ) There can be no public interest which requires us to consider this appeal.
The motion should, therefore, be granted.