People v. Schirtzer
| Decision Date | 08 May 1957 |
| Citation | 6 Misc.2d 561,162 N.Y.S.2d 417 |
| Parties | PEOPLE of the State of New York v. Max SCHIRTZER, Defendant. |
| Court | New York Court of Special Sessions |
Frank O'Connor, Dist. Atty., Jackson Heights, for the People.
Irving Lawrence Berlin, Jackson Heights, for defendant.
The motion of the defendant to set aside the judgment of conviction for the crime of bookmaking upon the ground that the evidence presented at the trial was insufficient in law and fact to warrant said judgment, is denied. I know of no authority that permits a trial judge of this court to set aside a conviction on the grounds urged; were such authority conferred upon me, as the trial judge, I would hold, after reading the minutes of the trial, that the conviction should stand. The remedy of the defendant, if he feels aggrieved and wishes to urge such grounds, is by appeal. 'There was no inherent power in any court to grant new trials under the common law, and this power can only be conferred upon a court by statute' (People v. Lamboray, 152 Misc. 206, 273 N.Y.S. 69, 70). Section 31(4) of the New York City Criminal Courts Act authorizes this court to apply the provisions of the Code of Criminal Procedure to the practice and procedure in this court, and therefore, a motion for new trial is governed by the provisions thereof with the exception hereinafter noted. This section reads as follows: 'All sections of the code of criminal procedure consistent with this act regulating and controlling the practice and procedure of the court of general sessions of the peace in the city and county of New York shall apply, as far as may be, to the practice and procedure in the court of special sessions, and shall regulate and control the practice and procedure of the said court, in so far as its jurisdiction and organization will permit.' If we are to consider this an application in arrest of judgment, the defendant fails to meet the requirements of section 331 of the Code of Criminal Procedure. However, statutory authority to grant new trials on the ground of newly discovered evidence, may be found in section 31(8) of the said New York City Criminal Courts Act, which in part, provides as follows: 'The court of special sessions shall have power to grant a new trial where it is made to appear, by affidavit, that upon another trial the defendant can produce evidence such as, if before received, would probably have changed the verdict or judgment; if such...
To continue reading
Request your trial
-
People v. Fysekis
...People v. Senise, 111 Misc.2d 477, 478, 444 N.Y.S.2d 535, citing People v. Lamboray, 152 Misc. 206, 273 N.Y.S. 69; People v. Schirtzer, 6 Misc.2d 561, 162 N.Y.S.2d 417). The CPL does not contain any provision empowering this court with the right to grant a declaratory judgment. In fact, acc......
-
People v. Superior Court In and For Butte County
...case cannot order a judgment of acquittal notwithstanding the verdict. (State v. Moreno, 374 P.2d 872, 873-874 (Ariz.); People v. Schirtzer, 162 N.Y.S.2d 417; Commonwealth v. Ornato, 191 Pa.Super. 581, 159 A.2d 223 (Pa.); Note 131 A.L.R. As there is no such proceeding in a criminal action a......
-
People v. Swerdlow
...110 N.E. 945, 946, L.R.A.1916D, 519; Quimbo Appo v. People, 20 N.Y. 531, especially 543, 551-554 [per Selden, J.]; People v. Schirtzer, 6 Misc.2d 561, 162 N.Y.S.2d 417; People v. Lamboray, 152 Misc. 206, 273 N.Y.S. While section 465 of the Code of Criminal Procedure provides additional grou......
-
People v. Senise
...and may only exercise such power as is authorized by statute. People v. Lamboray, 152 Misc. 206, 273 N.Y.S. 69; People v. Schirtzer, 6 Misc.2d 561, 162 N.Y.S.2d 417. Criminal Court Act Sec. 31 empowers the Criminal Court Judge: 1. to hear, try, and determine all charges of misdemeanor, exce......