People v. Freudenberg , 174 N.Y.S.2d 319 ( 1958 )

Memorandum for the Court.

Order granting writ of error coram nobis after hearing affirmed. The City Magistrate had jurisdiction to entertain the writ and conduct the hearing. Where neither the defendant nor the prosecuting official demands trial in the three-justice Court of Special Sessions, the City Magistrate has all the ‘ ‘ powers and jurisdiction of the court of special sessions ”. (N. Y. City Crim. Cts. Act, § 131, subd. 3.) Nor is it necessary that subsequent proceedings be taken before the same magistrate as the one before whom defendant was convicted or pleaded guilty (cf. subd. 4). This embraces not only the power to sentence (subd. 4), to grant a new trial (§ 131, subd. 3; § 31, subd. 8), but, by logical extension, to entertain a writ of error coram nobis.

Before 1946 the rule was otherwise. Then the statute limited Special Sessions’ jurisdiction to the particular City Magistrate before whom defendant affirmatively consented to have trial. (People v. Geltman, 267 App. Div. 83, affd. 293 N. Y. 715.) By complete recasting of the statute (L. 1946, ch. 924), the City Magistrate, after advising defendant of his right to trial before a three-justice Court of Special Sessions, is given power to try the case, unless defendant or the prosecuting official affirmatively demands otherwise. The statute, moreover, no longer limits the power to such magistrate, but grants it to any other magistrate before whom the case comes. The power granted, as noted above, under the statute, as enacted in 1946, includes ‘ ‘ all the powers and jurisdiction of the court of special sessions ” (§ 131, subd. 3).

It is significant that in this case the District Attorney not only did not make any demand for a hearing in the Court of Special Sessions, but expressly consented to the hearing before the City Magistrate.