People ex rel. White v. Fay
16 A.D.2d 946
| N.Y. App. Div. | 1962

In a habeas corpus proceeding, relator appeals from an order of the Supreme Court, Dutchess County, dated November 8, 1960 and entered November 14, 1960, after a hearing, which dismissed the writ and remanded him to the custody of respondent. Order affirmed. The relator was indicted on July 31, 1944 in New York County on the following six counts: (1) robbery in the second degree; (2) grand larceny in the first degree; and (3) assault in the second degree — all committed on July 15, 1944 on one complainant; and (4) robbery in the second degree; (5) asault [sic] in the second degree; and (6) assault in the second degree — all committed on July 14, 1944 on another complainant. Thereafter relator pleaded guilty to the fourth count of the indictment to cover all counts. Relator now contends that he was taken before a Magistrate with *947respect to counts 1, 2 and 3, but not with respect to counts 4, 5 and 6, as required by section 165 of the Code of Criminal Procedure, and, therefore, the court had no jurisdiction of the crime to which he had pleaded guilty. The failure to take relator before a Magistrate did not divest the Grand Jury of jurisdiction to indict the relator (People ex rel. Hirschberg v. Close, 1 N Y 2d 258; People ex rel. Butts v. Fay, 14 A D 2d 787). Moreover, the record discloses that relator is detained by virtue of a final judgment of a competent court of criminal jurisdiction and, therefore, the writ was properly dismissed (Civ. Prac. Act, § 1231; People ex rel. Branton v. Jackson, 6 A D 2d 916, affd. 6 N Y 2d 784; People ex rel. Butts v. Fay, supra). Beldock, P. J., Kleinfeld, Christ, Brennan and Rabin, JJ., concur.