People v. Cocco

285 A.D. 856, 136 N.Y.S.2d 698, 1955 N.Y. App. Div. LEXIS 5824

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 1955
• Status: Published

Opinion

Order reversed on the law and indictment reinstated. Memorandum: The indictment involved in this appeal, was returned to Supreme Court, Niagara County, in September, 1953. Thereafter, and on October 1, 1953, it was transferred to Niagara County Court. A motion to dismiss the indictment on the ground of double jeopardy, or, in the alternative, to inspect the Grand Jury minutes, was thereafter made in Supreme Court, at a Special Term thereof, held in Buffalo, New York. Upon the argument thereof, the defendant withdrew his application for an inspection of the Grand Jury minutes, “as the District Attorney submitted the minutes of the Grand Jury to the Court for its examination”. The subsequent granting of the motion and the order dismissing the indictment constituted error. The indictment having been transferred from Supreme Court to County Court, the latter court acquired exclusive jurisdiction, and Supreme Court was thereby deprived of jurisdiction, to consider a motion to dismiss. “In short, after removal, jurisdiction of all proceedings connected with the disposition of the indictment, whether before or after trial, is vested exclusively in the County Court.” (Matter of Schneider v. Aulisi, 307 N. Y. 376, 383.) It follows that the order involved on this appeal, dismissing the indictment, should be reversed for the reason stated, and the indictment reinstated. All concur, Piper, J., not voting. (Appeal from an order of Miagara Special Term, dismissing the indictment and exonerating the bail of defendant.) Present — Vaughan, J. P., Kimball, Piper, Wheeler and Van Duser, JJ.