People v. Gold
| Citation | 65 Misc.2d 873,319 N.Y.S.2d 296 |
| Parties | The PEOPLE of the State of New York, Plaintiff-Appellant, v. Martha GOLD, John Frank Levey and Jeffrey Michael Berg, Defendants-Respondents. |
| Decision Date | 01 March 1971 |
| Court | New York County Court |
On November 10, 1969 a search warrant was issued by Judge James F. Sheehan of the City Court of Rochester authorizing the search of a ground floor apartment located on premises at 5 Mt. Pleasant Park in the City of Rochester, for dangerous drugs. The underlying affidavit upon which the search warrant was based was sworn to by Detective Joseph Perticone of the Rochester Police Bureau before Judge Sheehan. Attached to Detective Perticone's affidavit is the affidavit of one Ocie Sparrow, sworn to before a Clerk of the Rochester City Court, Reciting that on November 10, 1969 he entered the Mt. Pleasant Park premises without permission, looking for things to take, and found in a dresser drawer two bags, a paper bag containing greenish leaves and seeds and a plastic bag containing greenish leaves and seeds.
On November 10, 1969 a search of the Mt. Pleasant Park premises was conducted by the police and the defendants were arrested and subsequently indicted, charged with the crime of Criminal Possession of a Dangerous Drug in the Third Degree in violation of Sec. 220.20 of the Penal Law of the State of New York.
Following the procedure directed in People v. Gray, 61 Misc.2d 769, 306 N.Y.S.2d 487, the defendants brought a motion to contravene the search warrant under sections 807--809 of the Code of Criminal Procedure before Judge Sheehan as the issuing magistrate. After a hearing, he granted an order vacating the search warrant for lack of probable cause, holding that the affidavit of the police officer 'failed to show his reliability and failed to state reliability and failed to show it in any respect, therefore, the Search Warrant is vacated.' (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637).
The People have appealed from the order of vacatur and the statement required by sec. 518--a of the Code has been filed. A motion to suppress, brought under sec. 813--c of the Code, based upon the order of Judge Sheehan, is pending before this court but has been adjourned until the determination of the appeal.
In opposition, the defendants have raised a number of procedural questions, particularly the right of the People to appeal from such an order. The right of the People to appeal is enumerated in sec. 518 of the Code and subparagraph 6 thereof specifically authorizes an appeal from a sec. 813--c order. It is silent, however, with respect to sec. 809 and the defendants raise the absence of such legislative language as a procedural bar to the People's appeal.
The People argue that an appeal from a sec. 809 order is, however, clearly contemplated by the Code because sec. 809, like sec. 813--c, provides for the return of seized property. Since both sections involve identical relief for the defendants and the identical evidentiary inhibition against the People, denying an appeal as to one (809) where it is permitted as to another (813--c) admittedly results in what appears to be virtually a psychedelic distortion of logic. So the People argue, and I agree, but unfortunately the appellate process is a creature of legislation, not logic.
It is by now doctrinal that the right to appeal is not embedded in the due process clause or otherwise constitutionally guaranteed. The right exists solely by statutory authorization and only to the extent of such authorization. (See, Cohen & Karger, Powers of the New York Court of Appeals, (Rev.Ed.) sec. 188, pp. 706--7; Paperno & Goldstein, Criminal Procedure in New York (1960), sec. 406, pp. 663--6).
As stated by one of the early Court of Appeals cases on the point, '* * * (T) he appellate jurisdiction of the courts of this state in criminal cases is purely statutory; and, of course, such jurisdiction can never be assumed, unless a statute can be found which expressly sanctions its exercise.' (People v. Zerillo, 200 N.Y. 443, 446, 93 N.E. 1108, 1109).
This has concededly resulted in more than one 'remarkable situation' (People v. Reed, 276 N.Y. 5, 12, 11 N.E.2d 330, 333) necessitating ad hoc remedial legislation.
For example, although a court has inherent power to vacate its own prior judgment because it involved a violation of a defendant's constitutional rights, (Matter of Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d 425), the same built-in power does not exist as to an appeal from a denial of such a post-judgment application. (People v. Gersewitz, 294 N.Y. 163, 61 N.E.2d 427).
After pointing out that the right to appeal is included in that non-constitutional area where the Legislature may grant or withhold authority from the courts in criminal cases, the Court of Appeals in Gersewitz rebuffed the request that it judicially fill in the legislative void.
(294 N.Y. at 169, 61 N.E.2d at 430).
The Legislature, upon a recommendation from the Judicial Council, responded by enacting the necessary amendments. .
Even before Gersewitz, the Court of Appeals had already pointed out a similar serious omission which precluded that People from appealing the granting of an order granted at the close of the case which dismissed an indictment for legal insufficiency, (People v. Reed, 276 N.Y. 5, 11 N.E.2d 330). That the legislative failure to provide for appeal had no ascertainable purpose was clearly recognized by the Court.
'* * * The right to appeal should not be left to inference or doubtful interpretation.' (276 N.Y. at p. 14, 11 N.E.2d at p. 334).
The illogic of the situation was commented upon in People v. Marra, 13 N.Y.2d 18, 20 241 N.Y.S.2d 409, 410, 191 N.E.2d 792, 793 by then Judge (now Chief Judge) Fuld, and again, urged by the Judicial Council, legislative correction was obtained. (ibid).
There are a multitude of other areas where the absence of explicit legislative authority compelled the rejection of an appeal by the People; viz., from orders granting inspection of grand jury minutes, (People v. Moreli, 11 A.D.2d 437, 207 N.Y.S.2d 843); an application for writ of error coram nobis, (People v. Monahan, 21 A.D.2d 748, 250 N.Y.S.2d 241); inspection of documents in possession of the district attorney (People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 156 N.E. 84); removal of proceedings from one court to another court (People v. Fay, 268 App.Div. 135, 50 N.Y.S.2d 1); severance of trials of co-defendants (People ex rel. Singer v. Rogers, 254 App.Div. 865, 4 N.Y.S.2d 905); permission to withdraw a not guilty plea (People v. Moon, 257 App.Div. 1019, 12 N.Y.S.2d 861); a new trial for newly discovered evidence (People v. Beckwith, 42 Hun. 366, aff'd 108 N.Y. 67, 15 N.E. 53; but cf. People ex rel. Jerome v. Court of General Sessions, 185 N.Y. 504, 78 N.E. 149).
And even where legislation had been enacted, but was not yet effective, which permitted the People to appeal from an order suppressing a confession, (sec. 518, subd. 6), no appeal was available. (People v. Jeffrey, 23 A.D.2d 846, 259 N.Y.S.2d 866, aff'd 17 N.Y.2d 515, 267 N.Y.S.2d 514, 214 N.E.2d 791).
Conversely, the defendant is similarly limited and his right to appeal from an intermediate order is even more restricted. (Code Crim.Proc. sec. 517; see Paperno & Goldstein, Criminal Procedure in New York (1960) sec. 408).
Thus, the Fourth Department, citing Zerillo and Gersewitz, ruled that an application for resentence is not appealable (People v. Sidoti, 1 A.D.2d 232, 149 N.Y.S.2d 371; see also, People v. Brown, 20 A.D.2d 756, 247 N.Y.S.2d 528, rev'd on other grounds 26 A.D.2d 614, 271 N.Y.S.2d 933); and the First Department held that the omission to provide for an appeal is conclusive and bars appeal from the denial of a certificate of reasonable doubt (People ex rel. Epton v. Nenna, 25 A.D.2d 518, 267 N.Y.S.2d 267, mot. for lv. to app. withdrawn 17 N.Y.2d 422, 268 N.Y.S.2d 1028, 216 N.E.2d 32).
For the same reason the Court of Appeals declared that although it could review the denial of a motion to dismiss an indictment on the basis of insufficiency of evidence before the Grand Jury, it was powerless to review a denial of a motion to inspect the minutes of the grand jury. (People v. Howell, 3 N.Y.2d 672, 171 N.Y.S.2d 801, 148 N.E.2d 867, mot. for rearg. den. 13 N.Y.2d 1185, 248 N.Y.S.2d 1027, 197 N.E.2d 633, mot. to amend remit. den. 13 N.Y.2d 1186).
In a later case (Siegel v. People, 16 N.Y.2d 330, 266 N.Y.S.2d 386, 213 N.E.2d 682, cert. den. 384 U.S. 970, 86 S.Ct. 1861, 16 L.Ed.2d 682) the Court of Appeals denied leave to appeal from the order of the Appellate Division denying a motion brought under CPLR 5704(a...
To continue reading
Request your trial
-
B. T. Productions, Inc. v. Barr
...is an intermediate order, not appealable at the pre-trial stage (People v. Ruth, 250 App.Div. 819, 294 N.Y.S. 753; People v. Gold, 65 Misc.2d 873, 319 N.Y.S.2d 296; People v. Gingello, 62 Misc.2d 577, 308 N.Y.S.2d 1019; People v. Nichols, Sup., 222 N.Y.S.2d 146.). Further, there exists no p......