135 Misc. 585 | N.Y. Sup. Ct. | 1930
The defendant is charged with maintaining a public nuisance and thereby violating section 1530 of the Penal Law, the proceeding having been brought before Clarence W. McCray, police justice of the village of Waverly, N. Y., who has held the defendant for trial in said Court of Special Sessions. Defendant now moves for a certificate of removal. The offense with which the defendant is charged is a misdemeanor, and the punishment therefor is imprisonment in a penitentiary or county jail not exceeding one year or a fine of $500, or both. The defendant insists that the said Court of Special Sessions has no jurisdiction to try the offense and further insists that if such court has jurisdiction, this court, in the exercise of sound discretion, should direct that the charge be investigated through the intervention of a grand jury. It was held in People, v. Belle (131 Misc. 610) that the jurisdiction of a Court of Special Sessions held by a police justice is exclusive in all misdemeanors. The contrary was held in People ex rel. Smith v. McCellan (133 Misc. 280) wherein the court determined that the County Court had jurisdiction of the misdemeanor set forth in section 1857 of the Penal Law, such offense being the charge of an omission of duty by a public officer. Section 74 of the Code of Criminal Procedure, concerning Police Courts, provides as follows: “ Police justices have such jurisdiction, and such only, as is specially conferred upon them by statute. The courts held by police justices are called police courts, and courts of special sessions are also called police courts, and are so designated in different parts of the Code.” Section 182 of the Village Law (as amd. by Laws of 1927, chap. 650) provides in part as follows: “ The police justice of a village may hold a court of special sessions therein and shall have in the first instance exclusive jurisdiction to hear, try and determine charges of any misdemeanor committed within such village subject to the right of removal, as provided by the code of criminal procedure, to a court having authority to inquire by the intervention of a grand jury into offenses committed within the county.” Section 22 of the Code of Criminal Procedure provides, in part, as follows: “ The supreme court has jurisdiction: 1. To inquire, by the intervention of a grand jury, of all crimes committed or triable in the county; but in respect of such minor crimes as courts of special sessions or police courts have exclusive jurisdiction to hear and determine, in the first instance, the jurisdiction of the supreme court attaches only after the certificate mentioned in section fifty-seven of this Code.” Section 39 of said Code contains an identical provision conferring jurisdiction upon County Courts. Section 56 of said Code confers upon Courts of Special Sessions, in the first instance, exclusive
The defendant’s motion is, therefore, denied upon the ground that the said Court of Special Sessions has no jurisdiction of the offense with which defendant is charged, and that such offense can only be inquired into by the intervention of a grand jury.