People v. De Cicco , 235 N.Y.S.2d 102 ( 1962 )

John H. Galloway, Jr., J.

This is a motion for the return of property or for the suppression of evidence alleged to have been obtained as a result of an unlawful search and seizure, which has been referred to this court for determination, by the City Judge of the Bye City Court. Defendant apparently also seeks in reality the same relief, under section 807 of the Code of Criminal Procedure, i.e., the restoration of the property seized upon controverting the grounds upon which the warrant was issued (cf., also, Code Grim. Pro., §§ 808, 809), as is now available to him under sections 813-c to 813-e inclusive. Since the proceedings contemplated under sections 808 and 809 are virtually the same as those now provided under sections 813-c through 813-e, and since there are criminal proceedings now pending in the Bye City Court upon an information presumably filed at least in part based upon the search warrant therein challenged upon this motion to suppress under sections 813-c through 813-e, wherein substantially the same relief is available, the instant motion is properly to be entertained in the first instance in the Bye City Court. See section 813-e of the Code of Criminal Procedure, which provides that “ When an * # * information or complaint upon which the defendant may be tried for a crime or offense has been filed in a court, * * * the motion [to suppress and for the return of the seized evidence or property] shall be made in the court having trial jurisdiction of such * * * information, complaint, or charge.”

We conclude that the proper forum for the entire instant motion to suppress, etc., is the City Court of Bye. Accordingly, the motion is respectfully returned and referred to the learned City Judge of the Bye City Court for determination.