DeJoy v. Zittell
| Decision Date | 23 February 1979 |
| Citation | 413 N.Y.S.2d 526,67 A.D.2d 1076 |
| Parties | In the Matter of Frank Louis DeJOY et al., Petitioners, v. Honorable Warren E. ZITTELL, Columbia County Judge, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Before MAHONEY, P. J., and SWEENEY, KANE, MAIN and MIKOLL, JJ.
MEMORANDUM BY THE COURT.
By this article 78 proceeding, petitioners seek a judgment compelling the respondent county court judge to render a determination as to the legality of a search warrant issued by a Justice of the Supreme Court on or about December 8, 1976. Petitioners, whose indictments for various gambling offenses were then pending in county court, moved under CPL article 710 to suppress evidence seized pursuant to the search warrant. This motion was denied by respondent on the ground that a county court judge lacks authority to review the legality of a determination made by a Justice of the Supreme Court.
CPL 710.50 (subd. 1, par. (a)) expressly provides that a motion to suppress evidence must be made in the superior court in which the indictment is pending. It is therefore clear that in the instant case the county court, as trial court, possessed jurisdiction to entertain and decide petitioners' motion. Such jurisdiction would not be affected by the fact that the search warrant was issued by a Justice of the Supreme Court (People v. Fusco, 75 Misc.2d 981, 983, 348 N.Y.S.2d 858, 862; see also People v. Sossa, 77 Misc.2d 98, 352 N.Y.S.2d 872; People v. Guenther, 77 Misc.2d 643, 354 N.Y.S.2d 827).
Petition granted, without costs.
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...the suppression motion (see CPL 710.50, subd. 1, par. [a]; People v. Versace, 73 A.D.2d 304, 426 N.Y.S.2d 61; Matter of De Joy v. Zitteli, 67 A.D.2d 1076, 413 N.Y.S.2d 526; see People v. Romney, 77 A.D.2d 482, 433 N.Y.S.2d 941; see, also, People v. Martin, 97 Misc.2d 441, 444-445, 411 N.Y.S......
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