People ex rel. Luciano v. Murphy

249 A.D. 879, 292 N.Y.S. 844

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1937
• Status: Published

Opinions

The appellant was indicted by the grand jury sitting in connection with an Extraordinary Term of the Supreme Court in New York county. The indictment charged the defendant, in ninety separate counts, with violations of section 2460 of the Penal Law. A large number of these counts could be said to be separate transactions, as they occurred at different times and at different places. But the record indicates all of them were in pursuance of a common plan and scheme on the part of the defendant to violate that section. Such violations appear to have been the business, or the “ racket,” of the appellant; and doubtless, on the trial of any one of these counts, proof of the defendant’s guilt as to each of the others could be offered in evidence, as part of a common plan and scheme.

The appellant insists that he had a substantial right, at the time the crimes were committed, to be tried for one crime at a time; and that the amendment to section 279 of the Code of Criminal Procedure (Laws of 1936, chap. 328) in form permitted the trial of all of these counts at the same time, and, therefore, as to the appellant, the amendment was ex post facto, and void. (U. S. Const, art. 1, § 10.) It is also the contention of the appellant that if the amendment to section 279 was invalid, and the court misinterpreted the statute in its application to him, it lost jurisdiction, and its judgment was a nullity.

The fact that there may be a serious question of law involved, as to whether the statute in question is applicable to the appellant, that question should be resolved on appeal when the court has before it the record of the trial. And when a competent court has jurisdiction of the subject-matter and of the person, mere errors of law do not divest it of jurisdiction. These errors may be corrected on appeal.

Order affirmed.

Rhodes, McNamee and Crasper, JJ., concur; Hill, P. J., concurs upon the ground that neither this court nor the Special Term had jurisdiction; Heffernan, J., dissents in an opinion.