People v. Davis

• Decision Date: 06 April 1967
• Citation: 27 A.D.2d 299,278 N.Y.S.2d 750
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. George DAVIS, Defendant-Appellant.

Page 750

278 N.Y.S.2d 750

27 A.D.2d 299

The PEOPLE of the State of New York, Respondent, v. George DAVIS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

April 6, 1967.

Nathan Dershowitz of counsel (William E. Hellerstein, New York City, on the brief; Anthony F. Marra, New York City, attorney) for appellant.

Peter R. DeFilippi, New York City, of counsel (Isidore Dollinger, Dist. Atty.) for respondent.

Before BOTEIN, P.J., and STEVENS, CAPOZZOLI, McNALLY and WITMER, JJ.

BOTEIN, Presiding Justice.

Defendant has been indicted by the Grand Jury of Bronx County for crimes allegedly committed against his infant son, namely, assault in the second degree (Penal Law, § 242), and endangering the life or health of a child (ibid., § 483). On the ground that jurisdiction lay in the Family Court, and not in the Supreme Court, defendant moved that the matter be transferred to the Family Court. After denial of the motion defendant was allowed to plead guilty to assault in the third degree in satisfaction of the indictment and was sentenced for that crime. On this appeal from the judgment of conviction defendant renews his jurisdictional contentions (see Matter of Ricapito v. People, 20 A.D.2d 567, 245 N.Y.S.2d 846; People v. De Jesus, 21 A.D.2d 236, 242, 250 N.Y.S.2d 317).

Article 8 of the Family Court Act creates a civil proceeding for dealing with 'family offenses.' The jurisdictional statement, which also defines such offenses, is found in section 812, as follows:

'The family court has exclusive original jurisdiction, subject to the provisions of section eight hundred thirteen, over any proceeding concerning acts which would constitute disorderly conduct or an assault between spouses or between parent and child or between members of the same family or household. For purposes of this article, 'disorderly conduct' includes disorderly conduct not in a public place.'

The Act anticipates that a family offense may initially give rise to a 'criminal complaint,' and provision is made in section 813, quoted in the note, ¹ for the transfer of such a complaint by the 'criminal court' to the Family Court.

The sense in which the term 'exclusive original jurisdiction' is used in the Family Court Act is set forth in section 114 as follows:

'When used in this act 'exclusive original jurisdiction' means that the proceedings over which the family court is given such jurisdiction must be originated in the family court in the manner prescribed by this act. The provisions of this act shall in no way limit or impair the jurisdiction of the supreme court as set forth in section seven of article six of the constitution of the state of New York.'

The cautionary last sentence finds its genesis in section 13 of article VI of the State Constitution. That section, which establishes the Family Court and prescribes its jurisdiction, concludes with the following subdivision:

'd. The provisions of this section shall in no way limit or impair the jurisdiction of the supreme court as set forth in section seven of this article.'

A preceding subdivision enumerates seven classes of actions and proceedings over which the Family Court shall have jurisdiction. The last reads:

'(7) as may be provided by law: the guardianship of the person of minors and, in conformity with the provisions of section seven of this article, crimes and offenses by or against minors or between spouses or between parent and child or between members of the same family or household.'

Section 7 of Article VI of the Constitution defines the jurisdiction of the Supreme Court. ² As intimated by the above-mentioned references to that section in both constitutional and statutory provisions creating the Family Court, the jurisdiction of that court is not exclusive of the jurisdiction of the Supreme Court. The intendment of the section--emphasized by the mandate in subdivision c that the Supreme Court shall have jurisdiction over new classes of actions and proceedings although the Legislature may provide that another court may also have jurisdiction--is that jurisdiction shall be concurrent (cf. Vazquez v. Vazquez, 26 A.D.2d 701, 702, 273 N.Y.S.2d 12). In the City of New York, where the acts giving rise to this case allegedly occurred, the Supreme Court, by the New York City clause in subdivision a of section 7, is given exclusive jurisdiction over crimes prosecuted by indictment, 'provided, however, that the legislature may grant * * * to the family court in the City of New York jurisdiction over crimes and offenses by or against minors or between spouses or between parent and child or between members of the same family or household.' The proviso does not authorize the Legislature to grant exclusive jurisdiction. Accordingly, in the City of New York the Supreme Court does have subject matter jurisdiction, whether or not exclusive, over the offense which the defendant committed against his son, and his motion to transfer the proceedings to the Family Court, to the extent that it was based on the absence of such jurisdiction, was properly denied.

The conclusion that the Supreme Court has jurisdiction, however, does not necessarily mean that it must retain it in preference to the Family Court. That it must is contingent on whether its jurisdiction is exclusive or is concurrent with that of the Family Court. Only if exclusive does the Constitution bar a transfer. ³

It has been suggested that, 'while the Constitution empowers the legislature to grant the Family Court in the City of New York jurisdiction over 'crimes and offenses by or against minors or between spouses' (N.Y.Const., art. VI, § 7, subd. a), the Supreme Court still remains with 'exclusive jurisdiction over crimes prosecuted by indictment' (N.Y.Const. art. VI, §§ 7, 13, subd. d).' (People v. Radison, 40 Misc.2d 1063, 1064, 244 N.Y.S.2d 941.) This reading of the New York City clause, in our opinion, excessively restricts the power of the Legislature. Before the adoption of the recent constitutional amendments establishing a unified court system for the State, trial of crimes prosecuted by indictment, although within the jurisdiction of the Supreme Court throughout the State, as a matter of practice and acceptance, in New York City constituted the business of the Court of General Sessions of New York County and the county courts of the other four counties in the city; outside the city indictments were generally tried in county courts. The amendments abolished the five courts functioning in the city (N.Y.Const. art. VI, § 35, subd. a; see Code Crim.Proc. § 50), but the county courts outside the city were continued (N.Y.Const. art. VI, § 10; see Code Crim.Proc. § 39). Within the city of New York, in consequence, the Supreme Court was alone left with jurisdiction over crimes prosecuted by indictment. The New York City clause so states, with, to repeat, the reservation set forth in the proviso which authorizes the Legislature to grant jurisdiction also (1) with respect to misdemeanors prosecuted by indictment, to the city-wide court of criminal jurisdiction, and (2) with respect to 'crimes and offenses' involving minors or family members, to the Family Court in the city. No limitation is placed on the comprehensive words 'crimes and offenses' which would contract their meaning to crimes and offenses not prosecuted by indictment. That the Legislature is empowered to endow the Family Court in the city of New York with jurisdiction over crimes prosecuted by indictment therefore seems clear.

We think it also clear that the Legislature has exercised its power by enactment of the Family Court Act, which 'applies in all counties of the state of New York' (§ 112) and contains provisions expressly addressed to the City of New York (e.g., §§ 121--126). There can be little question, in the face of sections 812 and 813 above quoted and the policy declaration in section 811, ⁴ that the Legislature intended to vest the Family Court with all constitutionally permissible jurisdiction to deal in the first instance with family offenses, including any complaint of assault, felonious or not, 'between spouses or between parent and child or between members of the same family or household'. ⁵ It is concluded, therefore, that by reason of the New York City clause and the adoption of the Family Court Act the jurisdiction of the Supreme Court over family offenses in New York City is not exclusive.

Although the Supreme Court may not be divested by statute of its constitutionally derived jurisdiction (Matter of Malloy, 278 N.Y. 429, 432, 17 N.E.2d 108; Barone v. Aetna Life Ins. Co., 260 N.Y. 410, 414, 183 N.E. 900), 'it need not exercise it if the legislature has given to other tribunals the requisite jurisdiction' (Matter of Runk, 200 N.Y. 447, 460, 94 N.E. 363, 368; cf. Noll v. Ruprecht, 256 App.Div. 926, 9 N.Y.S.2d 651, affd. 282 N.Y. 598, 25 N.E.2d 386; 1 Jessup-Redfield Surrogates' Law and Practice, §§ 56, 82, 112, 113; and see the constitutional provision quoted in note 3 herein). In the matter at bar the Legislature has given the requisite jurisdiction to the Family Court, not merely in general terms, but has plainly expressed its desire that the Family Court have priority of examination into family offenses, and has formulated a procedure for enforcement of the priority, as well as for surrender of jurisdiction where appropriate. We see no reason, in the absence of extraordinary circumstances not readily envisioned, for the Supreme Court to deviate from the procedure or to withhold adherence to the legislative view that the Family Court is a more suitable instrument for dealing with domestic discord signaled by disorderly conduct or assault. It is not to be overlooked that an order by the Family Court denying transfer of a family offense proceeding to the Supreme Court or any other 'appropriate criminal court' is subject to review by the Appellate Division of the Supreme Court (Family Court Act, § 1012).

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