April 7, 1958
Arthur M. Hammer for defendant.
Edward S. Silver, District Attorney ( Louis Cohen of counsel), for plaintiff.
The information, here, charges the defendant with the commission of the crime of petit larceny at Floyd Bennett Field, in the county of Kings.
At the end of the entire case (the defendant having reserved his motion to dismiss the information upon the ground that the People had failed to prove a prima facie case), the defendant moved to dismiss, first, upon the ground that the People had failed to prove such a prima case because this court had no jurisdiction since the alleged crime was committed upon United States Government-owned property, and, secondly, upon the ground that the People had failed to prove a case beyond reasonable doubt; the decision of this court was reserved.
We are here concerned with that part of the defendant's motion which challenges the jurisdiction of this court. There is no proof in the record to show that such property was owned or controlled by the United States Government. We know of no provision of law requiring a State court to take judicial notice of the nature of the occupancy thereat.
Section 392 of the Code of Criminal Procedure, in part, provides as follows: "The rules of evidence in civil cases are applicable to criminal cases".
Section 382 of the Civil Practice Act, in part, provides for the proof of public records and papers filed, kept, entered or recorded in a public office of the State, as follows: "A copy of a paper filed, kept, entered or recorded, pursuant to law, in a public office of the state, the officer having charge of which has, pursuant to law, an official seal * * * is evidence as if the original was produced. But, to entitle it to be used in evidence, it must be certified by the * * * officer having the custody of the original * * * under his official seal, and the hand of the person certifying it, or a printed * * * facsimile of his signature".
Section 59-h State L. of the State Law provides that, in the year following the year of the delivery of any deed to the United States Government, pursuant to such State Law, such deed shall be published by the Secretary of State with the Session Laws.
The independent search caused to be made by us has failed to disclose any record, in the register's office of Kings County, of a deed to such premises, although there appears in liber 6146 of conveyances, at page 455, thereat, a judgment of the United States District Court for the Eastern District of New York, on declaration of taking. However, such search did reveal that such a deed was executed by the Governor of this State, dated September 28, 1943, and, pursuant to the provisions of such State Law, was published at page 1819, with the Session Laws of 1944, which contained a reservation reading, as follows: "upon the express condition that the state of New York shall retain a concurrent jurisdiction with the United States on and over the property and premises so conveyed, so far as that all civil and criminal process, which may issue under the laws or authority of the state of New York, may be executed thereon in the same way and manner as if such jurisdiction had not been ceded, except so far as such process may affect the real or personal property of the United States".
It has been held that such a conditional conveyance does not reserve to the State the right to prosecute. ( People v. Kraus, 212 App. Div. 397.)
It is suggested that the defendant move to open the trial for the purpose of introducing in evidence, and that the defendant introduce in evidence, the copy of the deed to Floyd Bennett Field which is published at page 1819 with the 1944 Session Laws and which is certified to by the printed signature of the Secretary of State and his seal of office, so that the defendant may have a complete record in connection with that part of his motion which seeks to dismiss the information upon the ground that the People had failed to prove a prima facie case in that, more particularly, this court has no jurisdiction to try the charge set forth in said information because it was not committed within its territorial jurisdiction.