People v. Correa

Acosta, J.

dissents in a memorandum as follows: By striking down the Bronx Criminal Division (BCD) and limiting the historically broad jurisdiction of the Supreme Court, the majority today, demonstrating unbridled judicial activism, effectively upends tens of thousands of misdemeanor convictions adjudicated in Bronx County over the last five years and threatens to diminish the independence of the Judiciary. Because I believe that the Legislature, cognizant of the great wisdom inherent in the separation of powers doctrine, delegated to the Chief Judge the authority to create the BCD, and because Supreme Court unquestionably possesses the jurisdiction to adjudicate nonindicted misdemeanors, I dissent.

This appeal arises from a controversy between the People of the State of New York and a criminal defendant named Edgar Correa. Neither Mr. Correa nor the People challenged the jurisdiction of the Supreme Court to adjudicate Mr. Correa’s misdemeanor case, or the authority of the Chief Judge to create the BCD during the trial proceedings. Nor did Mr. Correa raise such a challenge in his initial brief before this Court. In fact, the issue the majority reaches out to decide today arises because the majority itself invited the litigants (and the Office of Court Administration, but not the Legislature or the Attorney General) to brief this judicially created issue after the completion of oral arguments.

It is in this run-of-the-mill criminal appeal from a violation conviction (harassment in the second degree), that the majority today impedes the Chief Judge’s rightful authority to implement court reform and in the process undermines the legal basis for the long-established integrated domestic violence courts and the other problem-solving courts, where Supreme Court routinely exercises jurisdiction over nonindicted misdemeanors.¹

Notably, although the majority goes out of its way to protect the Legislature’s so-called “reserved primary power to alter and regulate jurisdiction, practice and procedure” in the courts, the Legislature itself has not sought to intervene in this separation of powers controversy. Nor has the Legislature otherwise challenged the authority of the Chief Judge to create the BCD since its formation in 2004. It is perplexing that the majority would choose to decide this separation of powers controversy when one of those powers—the legislative branch, whose “legislative process” the Chief Judge allegedly “[b]ypass[ed]” by creating the BCD—is conspicuously absent from the whole litigation.

The absence and silence of the legislative branch aside, it is difficult to understand why the majority strains to decide these issues and create the chaos that would result from the majority’s decision, when the same issues are currently before the Court of Appeals in People v Wilson (59 AD3d 153 [2009], lv granted 12 NY3d 790 [2009] [specifically, according to the preliminary statement, the “claimed impropriety in transfer óf cases from criminal court to supreme court” is before the Court]), especially since the Court of Appeals has already approved the formation of the BCD in 2004 pursuant to the mandatory requirement of article VI, § 28 (c) of the New York Constitution.² Although the majority properly acknowledges that the “authority to regulate the courts is divided between the Legislature and the Chief Judge,” it is the majority—not the Legislature, not the Chief Judge, not the Chief Administrative Judge, not the Administrative Board of the Court and not the Court of Appeals—which boldly and proactively “regulates” the operation of the courts today.

Having created the controversy—a controversy which, I believe, does not actually exist—the majority then decides it by usurping the authority statutorily given to the Legislature and the Chief Judge, and wreaking havoc not only in Bronx County, but numerous courtrooms across the state, where the rationale for the problem-solving courts would be undermined. Remarkably, the majority does this not in the name of judicial independence but in the name of legislative prerogative—on behalf of a legislative body which has not uttered a single word against the creation of the BCD. Under these circumstances, judicial restraint, not judicial activism, is warranted.

Assuming for the sake of argument that this “controversy” is properly before us, I disagree with the majority’s holding that the Supreme Court’s jurisdiction in criminal cases is limited to offenses charged by grand jury indictment or by superior court information. Thus, in my opinion, these cases hinge on whether the Chief Judge and the Chief Administrator have the authority to transfer cases for adjudication in the BCD. After reviewing the relevant constitutional and statutory provisions, it is my opinion that the Chief Judge and Chief Administrator acted well within their authority.

New York Constitution, article VI, § 7 (a) states, in relevant part: “The supreme court shall have general original jurisdiction in law and equity ... In the city of New York, it shall have exclusive jurisdiction over crimes prosecuted by indictment, provided, however, that the legislature may grant to the citywide court of criminal jurisdiction of the city of New York jurisdiction over misdemeanors prosecuted by indictment.” (See also Judiciary Law § 140-b.)³ This constitutional grant of jurisdiction is “unlimited and unqualified” (Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718 [1997] [internal quotation marks omitted]; see Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332, 339 [1993] [Legislature may not impede even “one particle of (Supreme Court’s) jurisdiction” (quoting Matter of Malloy, 278 NY 429, 432 [1938])]; Sohn v Calderon, 78 NY2d 755, 766 [1991]; Kagen v Kagen, 21 NY2d 532, 537 [1968]), rendering the Supreme Court “competent to entertain all causes of action[ ]” unless its jurisdiction is specifically proscribed (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166 [1967]; see also Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175, 184 n 3 [1990] [Supreme Court has jurisdiction over all claims arising in law or equity; “Legislature may grant concurrent jurisdiction to other courts of limited jurisdiction”]). The only such permissible limit on the Supreme Court’s jurisdiction is to divest from the Supreme Court new actions not traditionally known at law or equity (see Sohn at 766; Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143, 152-153 [1983]; NY Const, art VI, § 7 [b]). Any other attempt to limit the Supreme Court’s jurisdiction is void (see Busch Jewelry Co. v United Retail Employees’ Union, 281 NY 150, 156 [1939]; Matter of Malloy, 278 NY 429, 432 [1938]; People ex rel. Swift v Luce, 204 NY 478, 487 [1912]; People v Darling, 50 AD2d 1038 [1975]; Jones, 18 Misc 3d at 65).

The Supreme Court has enjoyed misdemeanor jurisdiction continuously since its inception as the Supreme Court of Judicature in 1691 (see 1 Lyon, Colonial Laws of New York [1664-1719], at 229; Darling, 50 AD2d at 1038-1039; People ex rel. Folk v McNulty, 256 App Div 82, 90-91 [1939] [tracing Supreme Court jurisdiction to English Court of Kings Bench, which could divest lower courts of jurisdiction], affd 279 NY 563 [1939]; People ex rel. Constantinople v Warden of Rikers Is., 72 Misc 2d 906 [Sup Ct, Bronx County 1972]; People v Ruttles, 172 Misc 306 [Sup Ct, Orange County 1939]). As such, misdemeanors constituté a “traditional categor[y] of actions at law and equity,” jurisdiction over which article VI irrevocably vests in the Supreme Court concurrent with such other courts as the Legislature may provide (Sohn, 78 NY2d at 766).

Although article VI, § 15 (a) called for the creation of a citywide criminal court and section 15 (c) vested that court with jurisdiction over nonfelonies, those provisions did not divest Supreme Court of its original general jurisdiction. Indeed, article VI, § 15 (d) specifically provides that “provisions of this section shall in no way limit or impair the jurisdiction of the supreme court as set forth in section seven of this article.” Notably, the Criminal Court was not vested with “exclusive” jurisdiction over nonindicted misdemeanors and lesser offenses in the manner in which Supreme Court was for crimes prosecuted by indictment. Thus, the Supreme Court, a superior court (see CPL 10.10 [2] [a]), enjoys both “[t]rial jurisdiction of misdemeanors concurrent with that of the local criminal courts” (CPL 10.20 [1] [b]), including the New York City Criminal Court (see CPL 10.10 [3] [b]), and the power to divest the Criminal Court of its trial jurisdiction “in any particular case” without exception (CPL 10.30 [1] [b]).

Although the majority cites to various statutory provisions to conclude that Supreme Court’s jurisdiction is limited to adjudicating indicted misdemeanors (and indicted felonies and superior court informations), the majority simply cannot get around the plain language and obvious import of the longstanding constitutional and statutory provisions. Read together, these provisions demonstrate that the Supreme Court—a court of “general original jurisdiction in law and equity” (NY Const, art VI, § 7 [a])—has jurisdiction over all criminal matters and that its jurisdiction is exclusive with respect to felonies, which must be prosecuted by indictment or superior court information.

CPL 210.05, which states that “[t]he only methods of prosecuting an offense in a superior court are by an indictment filed therewith by a grand jury or by a superior court information filed therewith by a district attorney,” does not alter this result inasmuch as it does not limit the superior court’s jurisdiction, but only the method for prosecutors to invoke that jurisdiction, and thus does not bar a superior court from itself obtaining a case pursuant to a proper transfer order: “By choosing the words ‘prosecution’ and ‘prosecute,’ it is clear that the Legislature was directing [CPL 210.05] to the district attorneys, whose job it is to prosecute, and not to the courts. Courts do not have the power to ‘prosecute’ cases; that job is constitutionally exercised by the executive branch of the government, through its agents, the district attorneys. (Matter of McDonald v Sobel, 272 App Div 455, 461 [2d Dept 1947], affd 297 NY 679 [1947].) Decisions about whether a case is to be prosecuted by indictment are usually left to the district attorney. (See People v Di Falco, 44 NY2d 482, 487 [1978].) Because of the specific words chosen by the Legislature, CPL 210.05 should be read only as an ‘act of sanction,’ and not as an act intending to limit the power of the superior courts, conveyed via the Constitution, to preside over misdemeanor cases. (See People v Allen, 301 NY 287, 289-290 [1950].)” (People v Marrero, 8 Misc 3d 172, 178-179 [Sup Ct, Bronx County 2005] [upholding BCD].)

As Marrero noted, CPL 210.05 relates back to the CPL 170.20 invitation that the People, prior to entry of a guilty plea to or commencement of a trial of a local criminal court accusatory instrument, may adjourn the proceedings to present a nonfelony charge to a grand jury (see CPL 170.20 [2]). By thus obtaining and filing an indictment, the prosecutor divests the local criminal court of its jurisdiction (see CPL 170.20 [1]). Likewise, a defendant may apply for an order directing the People to present the charge to a grand jury (see CPL 170.25 [1]), and on the filing of an indictment, the prosecutor likewise divests the local criminal court of jurisdiction (see CPL 170.25 [2]; see also People v Jones, 18 Misc 3d at 65 [CPL 210.05 “is directed at the District Attorney,” and it “circumscribes a prosecutor’s ability to invoke a superior court’s jurisdiction,” not the court’s independent ability to assert jurisdiction]). As Jones points out, the absence of an indictment is not fatal to the BCD’s capacity for trying misdemeanor informations, both because article I, § 6 constitutional limitations on felony prosecutions are not implicated and because, pursuant to CPL 100.10 (1), an information is a sufficient basis for both the commencement and the prosecution of a misdemeanor case (Jones at 65-66).

This construction of CPL 210.05 is consistent with its legislative history, which shows that the statute’s sole purpose was to implement a now-relaxed right to indictment of all crimes in all courts, not to limit the Supreme Court’s powers as against those of local courts.⁴ After all, the indictment requirement to which CPL 210.05 refers is “ ‘not a limitation directed to the courts, but rather to the State, and its function is to prevent prosecutorial excess’ ” (People v Keizer, 100 NY2d 114, 119 [2003], quoting People v Ford, 62 NY2d 275, 282 [1984]; see People v Iannone, 45 NY2d 589, 594 [1978]; Jones, 18 Misc 3d at 65). To that end, the purpose of CPL 210.05 is only to limit prosecutorial discretion to invoke a superior court’s jurisdiction (see Jones, 18 Misc 3d at 65; Marrero, 8 Misc 3d at 179; People v Turza, 193 Misc 2d at 434), a purpose likewise manifest in CPL article 170. Here, by contrast, the challenged BCD proceedings cannot possibly suggest prosecutorial excess because the Judiciary and not the People effected the transfer of appellant’s case.

Given that Supreme Court has jurisdiction over nonindicted misdemeanors, the only issue that remains, in my opinion, is whether the Chief Judge and Chief Administrator have the authority to direct the transfer of cases to the BCD. Although the majority unfairly labels the exercise of this authority as “collapsing” or “eviscerat[ing]” the Criminal Court, the authority to divest and transfer cases is expressly provided by article VI, § 28 of the State Constitution and sections 211 and 212 of the Judiciary Law.

Initially, although parts 42 and 142 cast a wide net in transferring “some or all classes of cases pending in the Criminal Court of the City of New York in Bronx County in which at least one felony or misdemeanor is charged therein” (22 NYCRR 42.1 [c]), it is inaccurate to assert that the BCD “collapse[d]” or “eviscerate[d]” the Criminal Court inasmuch as the Criminal Court in Bronx County continues to exist, arraigning tens of thousands of cases each year and otherwise adjudicating tens of thousands of accusatory instruments charging violations and summonses charging violations and unclassified misdemeanors (Criminal Court of the City of New York Annual Report 2008, at 24, 27, 39 [published by the Office of the Deputy Chief Administrative Judge, New York City]). The annual report indicates that in 2008 Bronx Criminal Court adjudicated 120,331 summonses {id. at 39) and 76,923 cases in arraignments {id. at 27). Most of the cases arraigned were misdemeanors (57,588 out of 76,923) and half (48.9%) of the cases arraigned were disposed of in Bronx Criminal Court (38,323 dispositions out of 76,923 arraigned cases) {see id. at 36). Given the foregoing statistics, it is likewise completely inaccurate to assert that the creation of the BCD “deprived] [Bronx Criminal Court] of its jurisdiction over class A misdemeanors.”

In any event, article VI, § 28 specifically empowers the Chief Judge to direct the transfer of cases when the interests of effective court administration so require. Judiciary Law § 211 (1) (a) provides that “[t]he chief judge, after consultation with the administrative board, shall establish standards and administrative policies for general application to the unified court system throughout the state, including but not limited to standards and administrative policies relating to . . . [the] transfer of judges and causes among the courts of the unified court system.” This legislative articulation of the Chief Judge’s authority, which derives from section 28 of article VI, reflects the well-settled constitutional law that the power to transfer cases—independent of CPL provisions governing Supreme Court divestiture of criminal court actions (see CPL 170.20 [1]; 170.25 [1])—resides in the Chief Judge to effectuate systemic interests of efficient court administration. The only conditions on this authority are that the transferee court must have jurisdiction over the subject matter of the transferred case and the Chief Judge must first consult with the Administrative Board of the Courts and then obtain Court of Appeals consent before promulgating standards and administrative policies effectuating the transfer (see NY Const, art VI, § 28 [c]; Judiciary Law § 211 [1]).

Moreover, the Legislature vested in the Chief Administrative Judge the power to fix “terms and parts of court. . . and make necessary rules therefor” (Judiciary Law § 212 [1] [c]). This authority likewise flows from article VI, which vests in the Chief Administrative Judge such power as the Chief Judge delegates and such further power as the Legislature prescribes (see NY Const, art VI, § 28 [b]).

Thus, section 28 and Judiciary Law § 211 (1) invite the Chief Judge to direct the transfer of cases among the courts after consulting the Administrative Board and with consent of the Court of Appeals. The only limit on this power is that transferred cases must be routed to courts that the Constitution vests with subject matter jurisdiction over them. Of course, the Chief Judge may exercise this authority when systemic needs of effective court administration so require. Section 28, however, does not impose on the Chief Judge the obligation to obtain legislative consent prior to exercising this authority. To do so would vitiate the intent of the framers and the Legislature that section 28 separately empowers the Chief Judge to use such transfers to serve the system-wide administration of justice, free of the strictures that apply when individual courts transfer cases under section 19 alone.⁵ Moreover, any other result would belie the well-settled separation of powers axiom that core section 28 powers of court administration, including the Chief Judge’s administrative transfer power, are “complete” and cannot be defeated by statute (Matter of Met Council v Crosson, 84 NY2d 328, 335 [1994]; Matter of Bellacosa v Classification Review Bd. of Unified Ct. Sys. of State of N.Y., 72 NY2d 383, 388 [1988]; Corkum v Bartlett, 46 NY2d 424, 429 [1979]; cf. McCoy v Helsby, 28 NY2d 790, 791 [1971] [protecting Judiciary’s “basic fibre of administrative power” against statutory intrusion]).

Accordingly, the Chief Judge, after consulting the Administrative Board and with consent of the Court of Appeals, properly promulgated part 42 to provide for the BCD’s creation and the transfer of Criminal Court cases to reduce calendar congestion and ensure efficient judicial administration (see NY Const, art VI, § 28 [c]; Judiciary Law § 211 [1] [a]). Because the Chief Administrative Judge must supervise the operation of the courts on the Chief Judge’s behalf in accordance with such delegations and standards and administrative policies as the Chief Judge may provide (see NY Const, art VI, § 28 [b]; Judiciary Law § 212 [1]), part 142 and the subsequent administrative orders effectuating the Chief Judge’s part 42 directive were valid. Thus, the BCD’s transfer and adjudication of Criminal Court cases pursuant to the foregoing rules and administrative orders also were valid.

Once superior courts obtain trial jurisdiction over cases by proper transfer order moving the cases from local criminal courts, the CPL 210.05 provisions governing how prosecutors would invoke that same jurisdiction become moot. How superior courts then handle the transferred cases turns on what rules then govern them. Here, transferred Criminal Court cases proceed in the BCD under the same substantive and procedural laws as apply in the Criminal Court (see Rules of Chief Administrator of Cts [22 NYCRR] § 142.3).

Contrary to the majority’s holding, this result is not inconsistent with article VI, § 30 of the State Constitution. That section states: “The legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it has heretofore exercised. The legislature may, on such terms as it shall provide and subject to subsequent modification, delegate, in whole or in part, to a court, including the appellate division of the supreme court, or to the chief administrator of the courts, any power possessed by the legislature to regulate practice and procedure in the courts. The chief administrator of the courts shall exercise any such power delegated to him or her with the advice and consent of the administrative board of the courts. Nothing herein contained shall prevent the adoption of regulations by individual courts consistent with the general practice and procedure as provided by statute or general rules.” Indeed, section 30 limits the Legislature to such procedural powers as it “heretofore exercised” before voters ratified the 1962 version of article VI (NY Const, art VI, § 30). Before 1962, however, there was no Unified Court System, no central court administration and no administrative transfer power. As section 30 merely continued the Legislature’s then-existing procedural powers while section 28 created a new centralized administrative transfer power in that same year, section 30 cannot possibly empower the Legislature to limit section 28 transfers. That result reinforces the separation of powers axiom that no statute can impede the Judiciary’s “complete” section 28 self-governance powers (see Met Council, 84 NY2d at 335; Bellacosa, 72 NY2d at 388; Corkum, 46 NY2d at 429; cf. McCoy, 28 NY2d at 791).

Moreover, the Court of Appeals has instructed that nothing in section 30 bars the Judiciary from enacting rules that hold harmless the rights of litigating parties (cf. People v Ramos, 85 NY2d 678, 687-688 [1995] [section 30 generally bars court rules that “invade recognized rights of person or property,” “significantly affect the legal relationship between litigating parties” or otherwise “enlarge or abridge rights” (quoting McQuigan v Delaware, Lackawanna & W. R.R. Co., 129 NY 50, 55 [1891])]). The BCD’s rules and orders, by contrast, explicitly disclaim any such change in procedure (see 22 NYCRR 142.3 [each case transferred to the BCD “shall be subject to the same substantive and procedural law as would have applied to it had it not been transferred”]). Because procedures fixed by the Legislature for trying misdemeanors continue to apply unchanged after transfer, the BCD does not impair or abridge any litigant’s procedural rights under Ramos. Thus, far from intruding on the Legislature’s section 30 powers, section 142.3 fully respects their exercise.

Even if section 30 could extend to case transfers and bar the BCD’s rules underlying the transfer and adjudication of defendant’s case, section 30 invites the Legislature to delegate its procedural powers either to individual courts or the Chief Administrative Judge (see NY Const, art VI, § 30). Here the Legislature did both. To the Supreme Court, the Legislature delegated the CPL 10.30 (1) (b) power to divest “any particular case” from local courts. To the Chief Administrative Judge, the Legislature delegated the power to establish “terms and parts of court . . . and make necessary rules therefor” consistent with the Chief Judge’s directives (Judiciary Law § 212 [1] [c]). These delegations fully support the transfer of defendant’s case for disposition in the BCD.

Finally, the majority’s heavy reliance upon New York Constitution, article VI, § 15 (a), which directs the Legislature to “by law establish a single court of city-wide civil jurisdiction and a single court of city-wide criminal jurisdiction in and for the city of New York,” ignores the import of section 15 (d), which provides that the creation of such a city-wide court “shall in no way limit or impair the jurisdiction of the supreme court.” In other words, the Legislature’s creation of a single court of citywide criminal jurisdiction does not in any way limit Supreme Court’s general jurisdiction, or its broad authority to transfer cases or divest cases from the court of city-wide criminal jurisdiction.

In short, by conferring the transfer power in such broad terms to the Chief Judge (Judiciary Law § 211 [1] [a]) and to the Supreme Court (CPL 10.30 [1] [b]), the legislative branch properly recognized that the independent, third branch of government—the Judiciary—was in the best position to implement modifications pursuant to article VI, § 28 designed to make court operations more efficient, even significant modifications which merge Criminal Court into Supreme Court.

I, too, recognize that the Legislature should have a say in the policy decisions regarding the operation of the courts. And they have said their piece loudly and clearly—in Judiciary Law § 211 (1) (a), in CPL 10.20 (1) (b), in CPL 10.30 (1) (b), and in Judiciary Law § 212 (1) (c).

1 . See Wise, Judges Fire Queries on Court Merger Coming in Bronx, NYLJ, Oct. 29, 2004, at 1, col 3; see also People v Turza, 193 Misc 2d 432 (Sup Ct, Suffolk County 2002) (upholding transfer of misdemeanor cases to Supreme Court).

2 . The Court of Appeals denied leave to appeal in the only appellate case which squarely addressed the issues raised here (see People v Jones, 18 Misc 3d 63 [App Term, 1st Dept 2007], lv denied 10 NY3d 767 [2008] [upholding constitutionality of Bronx merger]).

3 . Judiciary Law § 140-b states: “The general jurisdiction in law and equity which the supreme court possesses under the provisions of the constitution includes all the jurisdiction which was possessed and exercised by the supreme court of the colony of New York at any time, and by the court of chancery in England on the fourth day of July, seventeen hundred seventy-six, with the exceptions, additions and limitations created and imposed by the constitution and laws of the state. Subject to those exceptions and limitations the supreme court of the state has all the powers and authority of each of those courts and may exercise them in like manner.”

4 . CPL 210.05 derives from section 222 of the 1888 Code of Criminal Procedure, which effectuated the then-applicable requirement that all crimes be prosecuted by indictment regardless of the offense charged or the court adjudicating it, but which later was amended to allow defendants to waive grand jury presentation: “All crimes prosecuted in a supreme court, or in a county court, or in a city court, must be prosecuted by indictment. But, where a defendant has been held to answer to any of these courts, that court, or any of said courts to which he might have been held to answer, may, on the application in writing of the defendant, direct any information to be filed against him for the offense for which he stands charged . . . When the information is filed, the defendant must be arraigned thereon and the court must proceed to trial in the same manner as if an indictment had been presented by a grand jury.” (Code Grim Pro § 222, as amended by L 1927, ch 597.)

In 1928, the Court of Appeals struck down the amended Code of Criminal Procedure § 222 because the Constitution did not then allow waiver of grand jury presentation of felonies (see People ex rel. Battista v Christian, 249 NY 314, 318-319 [1928]). In 1941, partly to relieve the resulting spike in superior court arraignments, the Judiciary proposed a Uniform City Court Act to vest in the city courts concurrent trial jurisdiction of crimes prosecuted by information and preliminary jurisdiction to arraign all offenses (see 7th Ann Report of NY Jud Council, at 153-260 [1941]). In adopting that proposal, lawmakers restored Code of Criminal Procedure § 222 by excising the waiver clause that Battista had struck down (see L 1941, ch 255, § 11).

The statute continued unchanged until the 1971 Legislature recodified the Code of Criminal Procedure as the modern Criminal Procedure Law, converting the section 222 mandate that “[a] 11 crimes” be indicted into the CPL 210.05 provision that the “only” way to prosecute would be by indictment (see L 1970, ch 996). Critically, this recodification effected no change in meaning: as Governor Rockefeller wrote, the CPL’s purpose was to rationalize disparate lower court systems, not infringe the Supreme Court’s powers (see Governor’s Mem approving L 1970, ch 966, 1970 McKinney’s Session Laws of NY, at 3140; Comm on Rev of Penal Law and Grim Code Mem in Support, 1970 NY Legis Ann, at 37). In 1973, voters addressed the 1928 Battista decision by amending the Constitution to allow prosecution by SCI (superior court information) (see NY Const, art I, § 6). The Legislature then achieved the current CPL 210.05 by conforming it to this new SCI authority (see L 1974, ch 467, §13).

5 . Criminal Procedure Law § 10.30 (1) (b) states that the Supreme Court has the power to divest the Criminal Court of its trial jurisdiction “in any particular case” (emphasis added).