People v. Fay — 268 A.D. 135

Majority

p. 135

The People of the State of New York, Appellant, v. Joseph S. Fay and James Bove, Respondents.

First Department,

June 28, 1944.

Whitman Knapp of counsel (Frank 8. Hogan, District Attorney), for appellant.

Robert J. Fitzsimmons of counsel (John J. Mooney and Warren H. May ell with him on the brief), for respondent Joseph S. Fay.

Moses Polahoff for respondent James Bove.

The Code of Criminal Procedure provides that a criminal action may at any time before trial, on the application of the defendant, be removed from- the Court of General

p. 136

Sessions of the County of New York to the Supreme Court, New York County (§ 22, subd. 4; § 344, subd. 1; § 346),'for good cause shown. We agree with the contention of the People that no sufficient cause was shown to justify removal.

However, the order from which the appeal has been taken is not an appealable order. The Code of Criminal Procedure (§ 518) sets forth the circumstances in which the People may appeal. No provision is there made for the right of appeal from an order removing the trial of a criminal action to the Supreme Court. “ It has repeatedly been held that the appellate jurisdiction of the courts of this State in criminal cases is purely statutory; and, of course, such jurisdiction can never be assumed, unless a statute can be found which expressly sanctions its exercise.” (People v. Zerillo, 200 N. Y. 443 , 446; see, also, People v. Brindell, 194 App. Div. 776 ; People v. Mellon, 261 App. Div. 400 , 401; People v. Faricchia, 44 N. Y. S. 2d 269 , appeal dismissed App. Div. Second Dept., Feb. 7, 1944 [N. Y. L. J., Feb. 8, 1944, p. 525, col. 2].) The appeal must, accordingly, be dismissed.

Martin, P. J., Townley, Glennon, Untermyer and Cohn, JJ., concur.

Appeal unanimously dismissed.

Cases cited

People v. Brindell 194 App. Div. 776 N.Y. App. Div. 1921-01-07 p. 136