People v. Brownstein

• Decision Date: 07 June 1960
• Citation: 201 N.Y.S.2d 474,11 A.D.2d 3
• Parties: PEOPLE of the State of New York, Respondent, v. Jacob BROWNSTEIN, Defendant-Appellant, and George S. Meissner, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 474

201 N.Y.S.2d 474

11 A.D.2d 3

PEOPLE of the State of New York, Respondent, v. Jacob BROWNSTEIN, Defendant-Appellant, and George S.

Meissner, Defendant.

Supreme Court, Appellate Division, First Department.

June 7, 1960.

Jacob Brownstein, Brooklyn, for defendant-appellant.

Peter R. Rosenblatt, New York City, of counsel (Frank S. Hogan, Dist. Atty., New York County, New York City), for respondent.

Before BOTEIN, P. J., and BREITEL, RABIN, VALENTE, and STEVENS, JJ.

PER CURIAM.

Defendant Brownstein appeals from an order denying his motion for a certificate that it is reasonable that the charges filed against him in the Court of Special Sessions be prosecuted by indictment (N.Y.City Crim.Cts.Act, § 31, sub. 1, par. [c]). The order is not appealable. People v. Le Tang, 273 App.Div. 811, 75 N.Y.S.2d 720; People v. Mascola, 174 App.Div. 360, 160 N.Y.S. 940. That the motion was made in the Supreme Court rather than in the Court of Special Sessions does not affect the nonappealability of the order. See Matter of Cross (Kiliani), 275 App.Div. 719, 87 N.Y.S.2d 338, appeal dismissed 299 N.Y. 680, 87 N.E.2d 68, certiorari denied Cross v. Kiliani, 338 U.S. 859, 70 S.Ct. 101, 94 L.Ed. 526, which dealt with an appeal from a denial of a motion pursuant to § 57, Code Crim.Proc. (a section similar to § 31, N.Y.City Crim.Cts. Act) applicable to Courts of Special Sessions outside the cities of New York and Albany.)

Appeals in criminal cases are purely statutory, and jurisdiction to entertain an appeal cannot be assumed unless there is express statutory permission. People v. Gersewitz, 294 N.Y. 163, 166, 61 N.E.2d 427, 428; People v. Zerillo, 200 N.Y. 443, 446, 93 N.E. 1108, 1109. Appellant's reliance on dicta in Matter of Ryan (Hogan), 306 N.Y. 11, 114 N.E.2d 183, is misplaced. The instant motion was one instituted pursuant to a special statutory provision in a law dealing with criminal proceedings. It was not addressed to the inherent power of the Supreme Court. Hence it was subject to the rules applicable to appeals in criminal cases. Since the Code of Criminal Procedure makes no provision for the review of an order denying a motion under § 31, N.Y.City Crim.Cts. Act (see Code Crim.Proc. §§ 517-519), this Court has no jurisdiction to entertain the appeal.

The appeal should therefore be dismissed, without costs.

Appeal taken from an order of March 10, 1960, dismissed, without costs. All concur.