Silver v. Gassman

• Decision Date: 11 December 1957
• Citation: 6 A.D.2d 694,171 N.Y.S.2d 314,12 Misc.2d 58
• Parties: Matter of the Application of Edward S. SILVER, District Attorney of Kings County, for an order under Article 78 of the Civil Practice Act, Petitioner, v. Benjamin GASSMAN and Matthew J. Troy, individually and as Justices of the Court of Special Sessions of the City of New York, and the Court of Special Sessions of the City of New York, and William Sockwell, Respondents.
• Court: New York Supreme Court

Page 314

171 N.Y.S.2d 314

12 Misc.2d 58

Matter of the Application of Edward S. SILVER, District

Attorney of Kings County, for an order under

Article 78 of the Civil Practice Act, Petitioner, v. Benjamin GASSMAN and Matthew J. Troy, individually and as

Justices of the Court of Special Sessions of the City of New

York, and the Court of Special Sessions of the City of New

York, and William Sockwell, Respondents.

Supreme Court, Special Term, Kings County, Part I.

Dec. 11, 1957.

Edward S. Silver, Brooklyn, pro se, for the motion. David Diamond, Brooklyn, of counsel.

Louis J. Lefkowitz, Atty. Gen., for respondents Benjamin Gassman and Matthew J. Troy, in opposition.

Caroline Davidson, New York City, for respondent Sockwell.

ANTHONY J. DI GIOVANNA, Justice.

This is an application by the District Attorney of Kings County for an order pursuant to Article 78 of the Civil Practice Act to compel a Justice of the Court of Special Sessions of the City of New York, County of Kings, to restore a case to the Trial Calendar which has been D.O.R.'d. The Attorney General of the State of New York moves to dismiss the petition for legal insufficiency.

The following are the undisputed facts as revealed by the record herein. On September 5, 1957, the District Attorney of Kings County filed an information in the Court of Special Sessions of the City of New York, charging the respondent William Sockwell and Mack Coffee with the crime of Petit Larceny.

On September 6, 1957, the date of arraignment, the co-defendant, Mack Coffee, pleaded guilty. On the same day William Sockwell was discharged on his own recognizance on motion of his attorney, over the objection of the Assistant District Attorney in charge of said case.

On September 18, 1957, petitioner moved to restore the case of William Stockwell to the calendar for trial. Honorable Benjamin Gassman the Presiding Justice at that time, referred the motion to Mr. Justice Matthew J. Troy, who had D.O.R.'d the case.

On September 24, 1957, Mr. Justice Troy denied the motion to restore, endorsing a statement of the reasons therefor on the original papers as follows:

'The alleged statement of an accomplice is insufficient to sustain the charge of larceny against Sockwell--The fact that the officer saw both enter store does not constitute the proof necessary to corroborate the statement of the accomplice, particularly in the face of defendant's absolute denial----'.

On October 7, 1957, Mr. Justice Gassman made an order denying petitioner's application to restore the case to the Trial Calendar on the basis of the aforesaid endorsement by Mr. Justice Troy.

The Court of Special Sessions of the City of New York is a court of limited jurisdiction. The extent of its jurisdiction and powers are set forth in Section 31 of the New York City Criminal Courts Act. Subdivision 4 of said Section 31 provides in part:

'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.'

The Code of Criminal Procedure, Section 51, subdivision 2, provides that the Court of General Sessions of the County of New York has jurisdiction 'to exercise, in cases arising in said county, the same powers as are conferred by this code upon county courts in other counties.'

The parties hereto have not cited nor has independent research by the court revealed any applicable specific rules of the Court of Special Sessions of the City of New York to aid the court in resolving the issues presented in this proceeding. Therefore, the statutory provisions governing the practice and procedure in the courts of general criminal jurisdiction in the City of New York referred to above will be relied upon for guidance.

The first contention of the District Attorney is to the effect that the Court of Special Sessions exceeded its powers in discharging the defendant on his own recognizance. There is no merit to this contention. Suffice it to say that the court discharged the defendant from custody on his own undertaking in conformity with the provisions of Section 669 of the Code of Criminal Procedure.

The other contention of the District Attorney is that the Court of Special Sessions cannot refuse to restore a case to the trial Calendar which has been D.O.R.'d.

There is no doubt that the Court of Special Sessions has the power to control its calendar. It is similar to the power of the Court of General Sessions of the County of New York to regulate and control the calendars of that court. People v. Bresler, 218 N.Y. 567, 572, 113 N.E. 536, 538; People v. Hammerstein, 150 App.Div. 212, 134 N.Y.S. 730; People v. Rosenkrantz, 123 Misc. 335, 205 N.Y.S. 861; Sec. 31, subdivision 4, New York City Criminal Courts Act. However, the question here does not involve the regulation and control of the calendar.

In moving to 'restore the case to the calendar' the District Attorney apparently followed a traditional practice limited to the Kings County Branch of the Court of Special Sessions. There seem to be no written rules (at least none have been called...