People v. Ryback
| Decision Date | 05 December 1957 |
| Citation | 3 N.Y.2d 467,146 N.E.2d 680,168 N.Y.S.2d 945 |
| Parties | , 146 N.E.2d 680 The PEOPLE of the State of New York, Respondent, v. Jack RYBACK, Sr., and Jack Ryback, Jr., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Philip O. Eisenberg, New York City, for appellants.
Frank S. Hogan, Dist. Atty., New York City (Lawrence K. Feitell and Richard G. Denzer, New York City, of counsel), for respondent.
These defendants appeal here from a unanimous affirmance by the Appellate Division, First Department, of judgments of the Court of General Sessions, entered after a joint trial before a jury, convicting each defendant of assault in the third degree. Each defendant argues that the indictment against him, which contained one count of second degree assault and one count of third degree assault, should have been dismissed because, according to defendants, the order removing the actions from Special Sessions to General Sessions for prosecution by indictment authorized only an indictment for the charge that had been laid in Special Sessions and transferred to General Sessions, that is, a charge of third degree assault. Besides this contention that the indictment was invalid, defendant Jack Ryback, Jr., the son, alone argues that the evidence was insufficient to convict him of any crime.
The argument as to the invalidity of the indictment may be best understood from this chronology:
September, 1954: Grand Jury, after presentation of the matter to it by the District Attorney, refused to indict either defendant for felonious assault but directed the District Attorney to file an information in Special Sessions against the two defendants for third degree assault; the District Attorney so recommended to the Court of General Sessions.
September 17, 1954: General Sessions made an order approving that direction of the Grand Jury and ordering the District Attorney to file an information against each defendant for assault third degree.
September 20, 1954: District Attorney filed in Special Sessions an information accusing each defendant of assault, third degree, and each defendant pleaded not guilty thereto.
February 11, 1955: General Sessions granted the motion of defendants for a certificate 'that it is reasonable that the charges now pending in the Court of Special Sessions be prosecuted by indictment'.
April 28, 1955: Each defendant, as aforesaid, was indicted for assault, second degree, and assault, third degree.
June 17, 1955: General Sessions denied a motion of defendants for dismissal of the indictment made on the ground that the Grand Jury was without power to indict for assault, second degree. Defendants were then (November, 1955) tried at General Sessions before a jury which disagreed.
January 31 February 6, 1956: Defendants again tried in General Sessions before a judge and jury and each convicted of assault, third degree.
The sequence, therefore, was: the District Attorney first sought an indictment against defendants for felonious assault; the Grand Jury refused to indict for that felony but recommended that the misdemeanor of third degree assault be presented by information to Special Sessions; an order for such transfer was made; the District Attorney complied with that order by proceeding by information charging third degree assault in Special Sessions, but on defendants' motion the matter was then transferred from Special Sessions to a Grand Jury and that this Grand Jury (not the same Grand Jury which had previously refused to indict) indicted each defendant for second degree assault as well as third degree assault; dismissal of that indictment was denied in General Sessions, and defendants were later convicted of third degree assault only. Their argument is that when the court directed that 'the charges now pending in the Court of Special Sessions' against them be prosecuted by indictment, it necessarily meant that the only charges which could validly be presented against them were the two charges of third degree assault pending in Special Sessions. Defendants attempt to support this theory by the language of subdivision 1 of section 31 of the New York City Criminal Courts Act which, after saying that in New York City Special Sessions has exclusive jurisdiction of all misdemeanors, goes on to say that Special Sessions is divested of jurisdiction to hear 'any charge...
To continue reading
Request your trial
-
Chang v. Rotker
...they may not be curtailed" (People v. Stern, 3 N.Y.2d 658, 661, 171 N.Y.S.2d 265, 148 N.E.2d 400 [citing People v. Ryback, 3 N.Y.2d 467, 168 N.Y.S.2d 945, 146 N.E.2d 680; People ex rel. Hirschberg v. Close, 1 N.Y.2d 258, 261, 152 N.Y.S.2d 1, 134 N.E.2d 818; People ex rel. Livingston v. Wyat......
-
Morgenthau v. Altman
...509, 358 N.Y.S.2d 416, 315 N.E.2d 475; People v. Stern, 3 N.Y.2d 658, 662-663, 171 N.Y.S.2d 265, 148 N.E.2d 400; People v. Ryback, 3 N.Y.2d 467, 168 N.Y.S.2d 945, 146 N.E.2d 680; Matter of Nigrone v. Murtagh, 46 A.D.2d 343, 350, 362 N.Y.S.2d 513, affd. 36 N.Y.2d 421, 369 N.Y.S.2d 75, 330 N.......
-
People v. Johnson
...223, 245, 252, 253; see, also, People v. Stern, 3 N.Y.2d 658, 661, 171 N.Y.S.2d 265, 266, 148 N.E.2d 400, 401; People v. Ryback, 3 N.Y.2d 467, 168 N.Y.S.2d 945, 146 N.E.2d 680; People ex rel. Livingston v. Wyatt, 18 N.Y. 383, 391--392, 79 N.E. 330, 333--334, 10 L.R.A.,N.S., 159.) However, s......
-
People v. Stern
...powers and insisted that in the absence of a clear constitutional or legislative expression they may not be curtailed (People v. Ryback, 3 N.Y.2d 467, 168 N.Y.S.2d 945; People ex rel. Hirschberg v. Close, 1 N.Y.2d 258, 261, 152 N.Y.S.2d 1, 2; People ex rel. Livingston v. Wyatt, 186 N.Y. 383......