People v. Zerillo
| Decision Date | 24 January 1911 |
| Parties | PEOPLE v. ZERILLO et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Frank Zerillo, Dominick Dalessandro, James Elia, and Nicola Savignano were indicted for the crime of making a false statement of the result of the canvass of ballots cast at an election while they were inspectors of election. From an order directing that a charge against the defendants for violating subdivision 12 of section 41 of Penal Code should be submitted to the grand jury, defendants appealed to the Appellate Division where the appeal was dismissed (125 N. Y. Supp. 1137), and from the order of dismissal this appeal is taken. Appeal dismissed.
Edward R. O'Malley, Atty. Gen. (Lowen E. Ginn, of counsel), for the motion.
Florence J. Sullivan, opposed.
On August 23, 1909, the Court of General Sessions of the Peace in and for the county of New York made an order directing that a charge against the defendants for violating subdivision 12 of section 41 of the Penal Code should be submitted to the grand jury. The papers, upon which this order was made showed that this charge had already been the subject of an indictment against the defendants to which they had successfully demurred. From the order directing a resubmission of the charge the defendants appealed to the Appellate Division where their appeal was dismissed (125 N. Y. Supp. 1137). ‘No appeal lies from such an order in a criminal case,’ said that court, ‘but the question must be presented on the appeal from the final judgment’-citing Matter of Montgomery, 126 App. Div. 72,110 N. Y. Supp. 793;Id., 193 N. Y. 659, 87 N. E. 1123. The defendants have now appealed to this court from the order of dismissal by the Appellate Division; and here, also, the special deputy Attorney General moves to dismiss their appeal.
It is necessary to state briefly the history of the case. The defendants were indicted on April 14, 1908, for the crime of making a false statement of the result of the canvass of the ballots cast at an election while they were inspectors of election. They interposed a demurrer to the indictment which was allowed by Judge Crain, and judgment was duly entered in their favor on June 11, 1908. At that time no direction was given by the court that the case should be resubmitted to the same or another grand jury. More than a year later, however, upon August 23, 1909, an order was made at a term of the Court of General Sessions held by Judge Rosalsky, directing that the Attorney General submit to the grand jury of the county of New York the violation of the Penal Code alleged to have been committed by the defendants herein. Under that order another indictment has been found which the defendants have unsuccessfully moved to dismiss. The purpose of the defendants upon the present appeal is to review the jurisdiction of the Court of General Sessions to make an order directing the resubmission of the charge to another grand jury under the particular circumstances of this case; that is to say, months after the decision upon the demurrer, and when a different judge was presiding over the court.
The Appellate Division has been unable to find any statutory authority for such an appeal to that court. I can find none, nor does it seem to me that the order is reviewable here. Section 519 of the Code of Criminal Procedure specifies the cases in which an appeal may be taken from a judgment or order of the Appellate Division to the Court of Appeals in criminal actions. These are (1) from a judgment affirming or reversing a judgment of conviction; (2) from a judgment affirming or reversing a judgment for the defendant on a demurrer to the indictment, or from...
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...jurisdiction, which “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 [1911] [emphasis added] ). In short, this is not, as the dissent remarks, an “excellent case ... for making an exception” to......
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