People v. Goldwag , 248 N.Y.S.2d 248 ( 1964 )

Aaron F. Goldstein, J.

The defendants have served notice upon this court that they have duly filed a petition for the removal of the cases pending in this court to the United States District Court for the Southern District of New York.

The defendants-petitioners allege that this court has violated their civil rights and pursuant to section 1446 of title 28 and pertinent subdivisions thereof of the United States Code; a basis, therefore, has been established for the removal of these cases from this court to a Federal tribunal.

This court may not comment on the alleged violations of civil rights or the merits of the substance of the petition, because same would prove academic in the light of the interpretation this court places upon the mandates of section 1446 of the United States Code and the appropriate subdivisions thereunder. The removal is deemed automatic merely upon the proper filing of the petition with the Federal court; and thereafter this court is pre-empted and divested of any authority or discretion to rule or pass upon the merits of these cases pending in our court or the proper venue of removal to the Federal Court, Southern District of New York.

Further, this court entertains reservations as to whether the Southern District is the proper venue since the locus in quo of the alleged crimes is Kings County. In the opinion of this court, the Eastern District would be the correct tribunal or form. Query: Does this render the petition now on file in the United States District Court for the Southern District defective?

Pending disposition of this issue and the other issues involved herein or a possible remand by the United States Court for the Southern District of New York, this court is restrained and compelled to place these cases upon the calendar of this court for February 24, 1964 or any other convenient date for the parties herein, with existing bail conditions remaining in full force and effect.