De Joy v. Zittell

67 A.D.2d 1076, 413 N.Y.S.2d 526, 1979 N.Y. App. Div. LEXIS 10890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 1979
• Status: Published

Opinion

— By this article 78 proceeding, petitioners seek a judgment compelling the respondent County Court Judge to render a determination as to the legality of a search warrant issued by a Justice of the Supreme Court on or about December 8, 1976. Petitioners, whose indictments for various gambling offenses were then pending in County Court, moved under CPL article 710 to suppress evidence seized pursuant to the search warrant. This motion was denied by respondent on the ground that a County Court Judge lacks authority to review the legality of a determination made by a Justice of the Supreme Court. CPL 710.50 (subd 1, par [a]) expressly provides that a motion to suppress evidence must be made in the superior court in which the indictment is pending. It is therefore clear that in the instant case the County Court, as trial court, possessed jurisdiction to entertain and decide petitioners’ motion. Such jurisdiction would not be affected by the fact that the search warrant was issued by a Justice of the Supreme Court (People v Fusco, 75 Mise 2d 981, 983; see, also, People v Sossa, 77 Mise 2d 98; People v Guenther, 77 Mise 2d 643). Petition granted, without costs. Mahoney, P. J., Sweeney, Kane, Main and Mikoll, JJ., concur.