Murphy v. Extraordinary Special & Trial Term of Supreme Court

• Decision Date: 19 July 1945
• Citation: 63 N.E.2d 49,294 N.Y. 440
• Parties: MURPHY v. EXTRAORDINARY SPECIAL AND TRIAL TERM OF SUPREME COURT et al.
• Court: New York Court of Appeals Court of Appeals

294 N.Y. 440

63 N.E.2d 49

MURPHY

v.EXTRAORDINARY SPECIAL AND TRIAL TERM OF SUPREME COURT et al.

Court of Appeals of New York.

July 19, 1945.

Appeal from Supreme Court, Appellate Division, First Department.

Proceeding in the matter of the application of John J. Murphy for an order under Civil Practice Act, art. 78, s 1283 et seq., prohibiting and restraining the Extraordinary Special and Trial Term of the Supreme Court, appointed by proclamation of the Governor, to be held in the County of New York, from acting without authority and without and in excess of jurisdiction, proceeding with the trial of petitioner on an indictment presented by a grand jury of the County of Albany to an Extraordinary Special and Trial Term of the Supreme Court held in such county, and entertaining any proceedings in relation to such indictment. From an order of the Appellate Division, 269 App.Div. 90, 54 N.Y.S.2d 71, unanimously denying and dismissing the application as a matter of law and not in exercise of discretion, petitioner appeals by permission of the Appellate Division.

Order reversed, and petition granted Henry Epstein, of New York City, and Daniel H. Prior, of Albany, for appellant.

Nathaniel L. Goldstein, Atty. Gen. (Harris B. Steinberg, George P. Monaghan, Stanley H. Fuld, and Herbert Stern, all of New York City, of counsel), for respondents.

LEHMAN, Chief Judge.

The Grand Jury of the County of Albany, drawn and empanelled to serve at an Extraordinary Term of the Supreme Court for the County of Albany, appointed to be held by order of the Governor, returned an indictment against the appellant containing twenty-nine counts charging crimes alleged to have been committed in the County of Albany. The Attorney-General then moved at the Extraordinary Term in Albany for an order changing the place of trial of the indictment from the Supreme Court, Albany County, to a term of the Supreme Court in another county on the ground ‘that it is impossible to obtain a fair and impartial trial in Albany County’. The application was granted and an order was made and entered on November 13, 1944, that ‘the place of trial of the indictment herein be and the same hereby is removed from the Supreme Court, County of Albany, to the Supreme Court, County of New York’. An appeal attempted to be taken from the order of removal was dismissed by the Appellate Division of the Third Department on the ground that the order is not appealable. People v. Murphy, 268 App.Div. 1009, 52 N.Y.S.2d 783. The Governor appointed an Extraordinary Special and Trial Term to be held in the County of New York ‘for the purpose of trying the indictments, or any amendments thereto, heretofore filed in the County of Albany against John J. Murphy’ and other defendants ‘which were transferred for trial to the County of New York.’ Then the appellant moved in the Appellate Division of the First Department ‘For an order pursuant to the provisions of Article 78 of the Civil Practice Act, and of Sections 1925 and 1300 thereof, prohibiting and restraining the Extraordinary Special and Trial Term of the Supreme Court of the State of New York appointed by proclamation of the Governor dated December 20, 1944, to be held at the Criminal Courts Building, 100 Centre Street, in the County of New York, on the 29th day of January, 1945, from acting without authority and without jurisdiction and in excess of jurisdiction, and from proceeding with the trial of the indictment against the petitioner presented by a Grand Jury of Albany County to the Extraordinary Special and Trial Term of the Supreme Court held in the County of Albany on the 28th day of July, 1944, and from entertaining any proceedings in relation to said indictment.’ The application was unanimously denied by the Appellate Division and the petition dismissed. The appeal is taken to this court by permission of the Appellate Division.

[1] The question presented upon the application for an order in the nature of prohibition is whether the order removing the place of trial of the indictment to another county is a nullity because made upon a motion which the court had no power to entertain and upon affidavits and evidence which the court had no power to consider. If the court had power to entertain the motion, error in appraising the probative force of the evidence submitted to sustain the claim of the People that an impartial trial cannot be had in the County of Albany, and even insufficiency of such evidence as matter of law, would not so taint the order of removal as to make it a nullity though such defects might so taint an order that it would inevitably be reversed upon appeal if the order were subject to review by an appellate court. Upon the application for an order in the nature of prohibition pursuant to article 78 of the Civil Practice Act, the only question presented to the Appellate Division and decided by it was whether the Supreme Court has power upon the application of the Attorney-General to order that an indictment returned by the Grand Jury of Albany County charging a crime committed in Albany County be tried in the County of New York before a jury drawn and selected from New York County upon an allegation and even proof that an impartial trial cannot be had in the County of Albany. If, under the law of the State of New York, an indictment must be tried by a jury of the county in which the indictment was found unless the action is removed to another county upon the application of the defendant no order made by the Supreme Court upon the application of the Attorney-General can confer upon the Extraordinary Term appointed to be held in the County of New York a jurisdiction denied to it by law. In such case an order prohibiting the Extraordinary Term in New York from trying an indictment found in the County of Albany would be proper. Upon this appeal we consider no other question.

The Legislature has in express terms provided that ‘on the application of the defendant’ a criminal action prosecuted by indictment may be removed:

‘1. From a county court to a term of the supreme court held in the same county, for good cause shown;

‘2. From the supreme court, or 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. s 344.

No statute provides that a criminal action prosecuted by indictment may be so removed upon the application of the People and against the opposition of a defendant, but the Attorney-General successfully contended in the Appellate Division that, at common law, the Court of Kings Bench had inherent power to grant a change of place of trial at the instance of the prosecution; that the Supreme Court possesses all the powers of the Court of Kings Bench, and that the express grant to the Supreme Court of power to remove a criminal action ‘on the application of the defendant’ should not be construed as a restriction upon the common-law power of the court to remove a criminal action from one county to another upon the application of the People or upon the court's suggestion.We are told, too, that such a statutory restriction would deprive the Supreme Court of part of its established common law jurisdiction, in violation of the provision of the Constitution of the State of New York that ‘The supreme court is continued with general jurisdiction in law and equity * * *.’ Art. VI, s 1.

In People v. Farini, 239 N.Y. 411, 146 N.E. 645, the question was presented whether the express grant to the Supreme Court of power ‘on the application of the defendant’ to remove a criminal action ‘from a county court to a term of the supreme court held in the same county, for good cause shown’ as provided in subdivision 1 of section 344 of the Code of Criminal Procedure, was intended to deprive the Supreme Court of power upon the application of the People to remove to itself in the same manner a criminal action from a county court in the same county. Recognizing that such a limitation upon the power of removal of the Supreme Court would reverse ‘a practice that has been general since the adoption of the Code and that was concededly allowed before that time,’ we said that ‘to effect such a change the intention of the Legislature should be expressed in clear and unmistakable terms.’ The court, accordingly, decided that this statutory provision, read in connection with other provisions of the Code of Criminal Procedure and construed in the light of legal history, is ‘simply a regulation of the method of removal when the application is made by the defendant. It is not an attempt by implication to deprive the Supreme Court of the well-understood power it had always possessed where the application was made by the prosecution.’ 239 N.Y. at page 415, 146 N.E. at page 645. See, also, Jones v. People, 79 N.Y. 45. The Appellate Division in the decision which we review upon the instant appeal felt constrained by the authority of our opinion and decision in People v. Farini, supra, to hold that even though subdivision 2 of section 344, like subdivision 1, covers only applications made by a defendant for the removal of a criminal action, the Supreme Court of this State retains a similar power to remove, upon the application of the prosecution, a criminal action ‘from the supreme court, or 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.’

Nowhere except in section 334, subdivision 1, can a legislative intention be found to deprive the Supreme Court ‘of the well-understood power it had always possessed’ to remove upon the application of the prosecution a criminal action from a county court to a term of the Supreme Court held in the same county, and in People v. Farini, supra, the court passed upon the effect only of section 344. If nowhere in the Code of...