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People v. Sanger

33 N.Y. Crim. 415 Court SUPREME COURT—APPELLATE DIVISION—FIRST DEPARTMENT, English

Delivered by McLaughlin, J.:

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p. 415
SUPREME COURT—APPELLATE DIVISION—FIRST DEPARTMENT,
July 1915.
THE PEOPLE v. WILLIAM SANGER.
(168 App. Div. 835.)

Headnote

Intermediary order of the court of general sessions—Certificate for PROSECUTION BY INDICTMENT REFUSED-APPEAL.
An order of the Court of General Sessions of the city of New York refusing a certificate that it is reasonable that a charge against the defendatit should be prosecuted by indictment is an intermediary order and is not appealable. Such order can be reviewed only on an appeal from a judgment of conviction.
Appeal by the defendant, William Sanger, from an order of the Court of General Sessions of the Peace in and for the county of New York, entered in the office of the clerk of said court on the 5th day of April, 1915, denying his motion for a certificate that the charge against him should be prosecuted by indictment.
Gilbert E. Roe, for the appellant.
Stanley L. Richter, for the respondent.

The defendant was arrested upon a complaint charging him with the crime of “ uttering an advertisement, purporting to-give information where, how, when, of whom, and by what means an article purporting to be for immoral use, could be obtained.” (Penal Law, § 1141, subd. 1.)

After a hearing before the magistrate who issued the warrant,

p. 416
the defendant wás held for trial before the Court of Special Sessions for the county of New York, and pending such trial was admitted to bail in the sum of $500. Thereafter he was arraigned before the Court of Special Sessions, pleaded not guilty, and a day fixed for the trial. The defendant thereupon moved, before the Court of General Sessions of the City and County of New York, that a certificate be granted that it is reasonable that the charge shall be prosecuted by the indictment. (Inferior Criminal Courts Act of the City of New York [Laws of 1910, chap. 659], § 31, subd. 1, clause c, as amd. by Laws of 1911, chap. 576.) The motion was denied and defendant appeals.

There is no right of appeal in a criminal case unless the same be given by statute (Matter of Montgomery, 126 App. Div. 72 ), and the only provision of the statute which permits an appeal is from a judgment of conviction. (Code Crim. Proc. § 517.) The order appealed from is an intermediary one, and, therefore, is not appealable. (People v. Dunn, 31 App. Div. 139 ; affd., 157 N. Y. 528 ; People v. Martin, No. 1, 99 App. Div. 372 ; People v. Di Bol, 105 id. 640; Matter of Montgomery, supra, and authorities there cited; People v. Hyde, 146 App. Div. 633 .) It can be reviewed only on appeal from the judgment of conviction.

It follows that the appeal must be dismissed.

Ingraham, P. J., Laughlin, Clarice and Scott, JJ., concurred.

Appeal dismissed.

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