Dodge v. Supreme Court , 291 N.Y.S. 527 ( 1936 )

McAvoy, J.

Petitioner, as district attorney, presented evidence to the additional grand jury of New York county for the September, 1936, term, indicating that the defendants Joseph Speiser and Frank White had violated the provisions of section 270-a and 270-d of the Penal Law, which prohibit the solicitation of legal business on behalf of an attorney and the employment by any attorney of a person to solicit legal business.

On September 8 and 22, 1936, the grand jury directed the petitioner to file informations in the Court of Special Sessions of the City of New York, charging these defendants with violations of sections 270-a and 270-d respectively. On September 8 and 22, 1936, these grand jury directions were presented to the judge of the Court of General Sessions of the County of New York for which the grand jury was drawn, and on those days that judge there presiding, pursuant to the provisions of section 742 of the Code of Criminal Procedure, approved the grand jury directions and ordered the petitioner to file informations in the Court of Special Sessions. These two orders are in full force and effect, and they have not been modified or vacated by him, by any judge of the Court of General Sessions, by the Supreme Court or by any justices of the Supreme Court.

Pursuant to the orders, the petitioner filed two informations in the Court of Special Sessions; the defendants Speiser and White were arraigned thereon and pleaded not guilty to the charges therein contained.

On October 28, 1936, the attorneys for the defendants moved at Special Term, Part I, before a justice of the Supreme Court, for an order “ removing the trial of two informations * * * to the Court of General Sessions to be tried before that Court and a jury, and vacating and modifying the order heretofore entered herein, approving the direction of the Grand Jury that informations be filed and tried in the Court of Special Sessions.”

On October 29, 1936, the justice presiding in the Supreme Court decided this motion, • with full knowledge of the fact that the judge of the Court of General Sessions had made the orders above described, and wrote a memorandum to the effect that the motion was granted and that the granting of the motion was largely influenced by the fact that “ the prosecution is the first under the statute involved.” He directed that an order be submitted in conformity with his decision.

Proceedings have been stayed under the order of temporary prohibition then issued by this court.

The questions involved in this proceeding are as to whether the Supreme Court or a justice thereof had jurisdiction to entertain, decide and make an order upon the motion of October 28, 1936, and as to whether the remedy sought here to prohibit the proceeding is appropriate.

Prior to 1926 there was no doubt that the Court of Special Sessions of the City of New York could be divested of jurisdiction by a certificate issued pursuant to the provisions of paragraph (c) of subdivision 1 of section 31 of the Inferior Criminal Courts Act of the City of New York, either (1) by a justice of the Supreme Court, or (2) by a judge of the Court of General Sessions of the County of New York, or a county judge where the charge should be triable in a county outside of New York county. There was then, in all cases, concurrent jurisdiction in those courts to issue certificates for transfer of the cause. Under the amendment to section 742 of the Code of Criminal Procedure in 1926, there was no change made in the statute where the information has been filed after a preliminary examination of a defendant and his holding by a magistrate, and a certificate of transfer may now, as before, in such ease be issued either by a justice of the Supreme Court or by a judge of the Court of General Sessions.

Where, however, the prosecution is begun before a grand jury and the grand jury directs the district attorney to apply to the court for which the grand jury was drawn for an order approving a grand jury direction that the district attorney proceed by information, and the court makes such order approving such direction, the course to be followed to test the right to the certificate is not precisely indicated.

The grand jury is a constituent part of the court for which it is drawn. The court “ inquires ” by the grand jury and “ tries and determines ” by the petit jury.

When, therefore, the prosecution is begun before the grand jury, it is already “ in ” the court for which the grand jury is drawn.

The judge of the court for which the grand jury was drawn does not act ministerially. Section 742 of the Code of Criminal Procedure clearly contemplates that this approval shall be a judicial act, albeit ex parte in nature.

An order made pursuant to section 742 of the Code of Criminal Procedure is of equal dignity and similar character to any other order made by a judge of the Court of General Sessions in the performance of his judicial functions.

It seems to us necessarily to follow as matter of orderly procedure that all applications and motions with respect to the order of approval should be made to the judge of the court for which the grand jury was drawn, and to no other judge or court, unless some disqualification exists in such judge or other supervening reason appears. No such ground is shown in the petition or affidavits before us on the return to this alternative order. A justice of the Supreme Court, although he had jurisdiction to direct that the charge should be prosecuted by indictment, should not have entertained a motion for that relief, because, strictly speaking, he was not merely exercising an alleged function under section 31, of the Inferior Criminal Courts Act of the City of New York, to wit,. making the certificate prescribed, he was besides in effect reviewing a judicial act of a judge of the Court of General Sessions performed pursuant to the statutory authority of that judge, although such action was taken without provision for notice to defendant.

The setting aside of the judicial act of one judicial officer by another of equal rank and co-ordinate jurisdiction in criminal causes is repugnant to the orderly process and administration of the law. We do not think, however, that the situation herein is one for which an order of prohibition is the appropriate remedy, since such order may issue only where jurisdiction is lacking, or the court or judge to be prohibited from acting is exceeding a jurisdiction conferred by law. We are persuaded, however, that we should suggest to the justice below that he direct defendants to apply to the judge of the Court of General Sessions, who approved the grand jury’s direction that' the charge should be prosecuted by an information to be filed by the district attorney under section 742 of the Code of Criminal Procedure, so that the matter may be considered by the judge in whose court it arose and was pending, when the approval of that judge was granted. We believe on mature reflection that it will appear to the justice of the Supreme Court to whom the application was made that such a procedure is the proper course to follow.

The application for an order of prohibition should be denied as matter of law and not in the exercise of discretion and the proceeding to certify that the charge should be prosecuted by indictment is stayed as appears in the order entered hereon.

Untermter and Dore, JJ., concur; Martin, P. J., and Cohn, J., dissent.