People v. Smythe

171 Misc. 347, 12 N.Y.S.2d 314, 1939 N.Y. Misc. LEXIS 1881

Opinion

Fennelly, J.

This is a motion to dismiss the indictment upon the grand jury minutes. The indictment was found by a Supreme Court grand jury and transferred to the County Court. Subsequently a motion for an inspection of the grand jury minutes was granted in the Supreme Court, and thereafter a motion was made in the County Court for a dismissal of the indictment upon the grand jury minutes. This latter motion was denied.

As the indictment is now in the County Court, in my opinion it is not properly the subject of attack in this court which ordered its transfer, and this motion must be denied. People ex rel. Hirschberg v. Supreme Court (269 N. Y. 392), I think, indicates this, although the precise point was not before the court. I am aware that the court in People v. Riner (7 N. Y. Supp. [2d] 674) expresses a contrary view. Under the “ further relief clause ” in the motion papers I am ordering the minutes transferred to the County Court to meet the objection raised by the learned County Court. Submit order upon two days’ notice of settlement.