151 N.Y.S. 322 | N.Y. App. Div. | 1915
Lead Opinion
The appellant asks that so much of the order as remits the indictment for trial to the County Court of Kings county be reversed, and the learned district attorney contends that we are without power to consider this appeal for the reason that no independent direct appeal is authorized. The law, as established by a long and uniform line of decisions, is, as stated by the Court of Appeals in its latest utterance upon the subject, “ the appellate jurisdiction of the courts of this State in criminal cases is purely statutory; and, of course, such jurisdiction, can never be assumed, unless a statute can be found which expressly sanctions its exercise.” (People v. Zerillo, 200 N. Y. 443.) The Code of Criminal Procedure provides a system of practice and procedure, extensive and complete in itself, governing the procedure in all criminal cases, including appeals. (Code Crim. Proc. §§ 515, 962; People v. Green, 137 App. Div. 763.) Section 517 of the Code of Criminal Procedure specifies the only appeal and method of review available to defendant in a criminal action, and under the provisions of that section orders may be reviewed only as intermediate orders, incidental to, and upon, an appeal from the judgment of conviction. Orders may not be reviewed by a direct appeal independent of an appeal from a judgment of conviction. (People v. Zerillo, supra; People v. Green, supra; Matter of Jones, 181 N. Y. 389; People v. Trezza, 128 id. 529; Matter of Montgomery, 126 App. Div. 72; People v. Wendel, 128 id. 437; People v. Martin, No. 1, 99 id. 372; Peo
Our attention is called to some cases which are exceptions to the general rule, viz., that no direct appeal lies from orders in criminal actions which can be reviewed upon appeal from the judgment of conviction. In People v. Butts (121 App. Div.
Thomas and Putnam, JJ., concurred; Burr, J., concurred in separate memorandum.
See Inferior Criminal Courts Act of the City of New York (Laws of 1910, chap. 659), § 31, as amd.; Id. § 120. — [Rep.
Concurrence Opinion
I concur. Personally, I think the defendant may not be without practical remedy even if the order appealed from was improperly made. Authority is given to move to change the place of trial from a County Court to a term of the Supreme Court held in another county, on the ground that a fair and impartial trial cannot be had in the county where the indictment is pending. (Code Crim. Proc. § 344, subd. 2.) While such motion must be made in the Supreme Court (Code Crim.
Appeal dismissed.