People v. Allen

93 N.E.2d 850, 301 N.Y. 287

• Court: New York Court of Appeals
• Decided: July 11, 1950
• Status: Published

Opinions

Dye, J.

Having been indicted by the Nassau County Grand Jury for the crime of perjury, second degree (Penal Law, §1620-b), the defendant-appellant was tried in Nassau County Court before Honorable James W, Diddle and a. jury. The judgment of Ms conviction has been unanimously affirmed in the Appellate Division (Second Department) and is now before us by permission of the Chief Judge of this court on the question of whether such conviction was had in a duly constituted court.

Judge Diddle, County Judge of Schenectady County, was serving in Nassau County Court, Part III, at the request of Honorable Henry J. A. Collins, County Judge of- Nassau County, who at the time was holding Part I. Judge Donahue, County Judge of Putnam County, was holding Part II but we are not concerned with his authority which has not been challenged. The record shows that the trial calendar was overcrowded at the time and many persons charged with crime were in jail awaiting trial.

The Constitution of the State of New York, section 11 of article VI, provides that: “ A county judge of any county outside the city of New York may hold the county court in any other county when requested by the county judge of such other county ”. By section 76 of the Civil Practice Act, a county judge when acting in another county by request “ may exercise all the powers and perform all the duties of the county judge of such other county ”. (Italics supplied.) Such constitutional and statutory provisions impose no condition or limitation on the making of a “ request ” or the performance of the judicial functions incident thereto. Nor may any be implied from the further constitutional provision that: “ in case of the death, absence, or incapacity of a county judge * * * the governor may designate a county judge of another county to hold the county court during such vacancy, absence, or inability to act.” This clearly contemplates a situation where the county judge is not in a position to make the request which, obviously, is not this case.

The Constitution envisages a county court in each of the sixty-two counties without condition or limitation as to* whether its business is conducted in one or more parts. In either event it must be deemed a county court and, in this respect, is no different than the functioning of the Supreme Court in parts (Matter of Malloy, 278 N. Y. 429). No contrary conclusion may be drawn from the circumstance that the Legislature has specifically authorized certain county courts to conduct their business in parts, for to that extent section 42 of the Code of Criminal Procedure is an act of sanction and, as such, is superfluous. It may not be read as an act of limitation or, if so read, it obviously must yield as an unauthorized encroachment on the powers of the county court authorized by the Constitution. It is axiomatic that the Legislature in performing its law-making function may not enlarge upon or abridge the Constitution. Judge Liddle’s act in holding Nassau County Court while the regularly elected county judge was neither absent nor incapacitated but, in fact, present in the county and holding Part I, had constitutional authority, and having such, Part III was, therefore, a duly constituted session of the Nassau County Court.

We wish to note also, that the conviction is supported by the overwhelming weight of the evidence and that no errors were committed at the trial warranting a reversal.

The judgment should be affirmed.