People v. Balcerzak

2 Misc. 2d 895, 149 N.Y.S.2d 578, 1956 N.Y. Misc. LEXIS 2015

Opinion

Michael J. Montesano, J.

The defendant moved this court on the 29th day of February, 1956, for a certificate of reasonable doubt pursuant to section 529 of the Code of Criminal Precedure. Justice Fisher denied the application and an order was duly entered. The defendant now moves to reargue the motion before me. He contends that since the argument and denial of the motion by Justice Fisher, the defendant has, upon an examination of the transcript of the minutes of the trial which were not available to him at the time of the aforesaid argument, discovered new and additional grounds for the granting of the certificate.

I have examined the new matter and find that it is fairly substantial. However, section 529 of the code specifically provides that but one application for a certificate of reasonable doubt may be made. (See People v. McCarthy, 250 N. Y. 358; Carlisle v. Barnes, 183 N. Y. 272.) While the defendant is not precluded from rearguing the motion, it must nevertheless be made before the Justice who heard the original motion. (People v. Oxfeld, 121 Misc. 524.)

The motion is therefore denied without prejudice to reargue before Justice Fisher.