| People v Correa |
| 2010 NY Slip Op 01533 [70 AD3d 532] |
| February 23, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Edgar Correa, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Justin J. Braun of counsel), forrespondent.
Judgment, Criminal Division of the Supreme Court, Bronx County (Robert G. Seewald, J.),rendered September 27, 2006, convicting defendant, after a nonjury trial, of harassment in thesecond degree, and sentencing him to a term of 15 days, reversed, on the law, and themisdemeanor information dismissed.
On September 8, 2004, citing New York State Constitution, article VI, § 28 (c) andsection 211 (1) (a) of the Judiciary Law as the source of her authority, Chief Judge Kayepromulgated Rules of the Chief Judge (22 NYCRR) part 42, which authorized the ChiefAdministrator of the Courts, in consultation and agreement with the Presiding Justice of the FirstJudicial Department, to establish the Criminal Division of the Supreme Court in Bronx County(BCD) and to provide for the transfer thereto of "some or all classes of cases pending in theCriminal Court of the City of New York in Bronx County in which at least one felony ormisdemeanor is charged therein" (22 NYCRR 42.1 [b], [c]).
The avowed purpose of part 42 was "to promote the administration of justice in the criminalcourts in Bronx County by authorizing deployment of the judges of those courts in a manner thatassures that all present and future caseload demands in such county will be met as expeditiouslyand effectively as possible" (22 NYCRR 42.1 [a]).
On September 21, 2004, the Chief Administrative Judge, purporting to act pursuant to "theauthority vested in [him] and upon consultation with the Administrative Board of the Courts,"promulgated Rules of the Chief Administrator of the Courts (22 NYCRR) part 142, whichestablished the BCD, to which all pending and future Bronx County criminal casescharging at least one class A misdemeanor or a felony, not resolved at arraignment, would betransferred for further proceedings (22 NYCRR 142.1, 142.2). On September 27, 2004, theAdministrative Judge of Bronx County issued an order putting the transfer order into effect as ofNovember 5, 2004. The Bronx Administrative Judge's order purports to have been issued"pursuant to the authority vested . . . by article VI, § 19 (a) of the StateConstitution and pursuant to direction of the Chief Administrative Judge of the Courts asprovided in section 142.2 (b) . . . and further, upon finding that it will promote theadministration of justice in Bronx County for selected components of the criminal caseload of itscourts."
These directives effectively merged the New York City Criminal Court in the Bronx with[*2]the State Supreme Court in the Bronx, creating a singleconsolidated criminal trial court for all cases charging at least one class A misdemeanor or afelony.
On October 1, 2005, defendant Edgar Correa's case was transferred to the newly formedBCD. Correa had been charged by information in the Bronx Criminal Court with assault in thethird degree (Penal Law § 120.00 [1]), menacing in the second degree (Penal Law §120.14 [1]), and criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2]), all class A misdemeanors, and with harassment in the second degree (Penal Law §240.26 [1]), a violation.[FN1] Defendant was convicted of harassment in the second degree and this appeal followed. By letterof the Clerk of the Court dated February 22, 2009, this Court asked for additional briefing, in thisand two other appeals, on the following issues, which do not have to be preserved for appellatereview (see People v Patterson, 39 NY2d 288, 295 [1976]; People v Harper, 37NY2d 96, 99 [1975]): (1) whether the establishment of the BCD under part 142 of the Rules ofthe Chief Administrator of the Courts is consistent with the Constitution and statutes of the Stateof New York; and (2) whether the Supreme Court possesses jurisdiction over a criminal caseabsent the filing of an indictment or superior court information as specified in CPL 210.05.
Although parts 42 and 142 and the Bronx Administrative Judge's order, which establishedthe BCD and put the transfer order into effect, recite that they are promulgated pursuant to theauthority granted by article VI, § 28 (c) and § 19 (a) of the State Constitution, andsection 211 (1) (a) of the Judiciary Law, numerous other provisions of the State Constitution,Judiciary Law and Criminal Procedure Law relating to the structure of the Unified Court Systemand the authority of the Chief Judge, Chief Administrator and Legislature to regulate the courtsmust be considered in determining these issues. As discussed below, an analysis of theseprovisions leads to the conclusion that in transferring all cases charging a class A misdemeanorto the newly created BCD, causing a collapse of the constitutionally created Criminal Court ofthe City of New York in the Bronx, the Chief Judge and Chief Administrator overstepped thebounds of the administrative and operational authority they possess under State Constitution,article VI, § 28 and § 19 (a), and Judiciary Law §§ 211 and 212, andimpinged on the Legislature's reserved primary power to alter and regulate jurisdiction, practiceand procedure under State Constitution, article VI, § 30.
Consequently, we now hold that the establishment of the BCD by administrative decree,which eviscerates the Bronx Criminal Court by depriving it of its jurisdiction over class Amisdemeanors and effectively restructures the constitutionally created Unified Court System, isnot justifiable under the State Constitution, the Criminal Procedure Law, the Judiciary Law orany of the statutes or rules governing the administrative powers of the Chief Judge of the State ofNew York and Chief Administrator of the Courts.
By constitutional amendment, State Constitution, article VI, effective September 1, 1962,vested judicial authority of the State in a unified court system (NY Const, art VI, § 1).Pursuant to article III, § 1, "[t]he legislative power of this state shall be vested in thesenate and assembly," which traditionally requires "that the Legislature make the critical policydecisions" (Bourquin v Cuomo, 85 NY2d 781, 784 [1995]).[*3]
State Constitution, article VI, § 6 (d) continued theSupreme Court, with article VI, § 7 (a) providing, in pertinent part, that the Supreme Court"shall have general original jurisdiction in law and equity" and, in the City of New York,"exclusive jurisdiction over crimes prosecuted by indictment, provided, however, that thelegislature may grant to the city-wide court of criminal jurisdiction of the city of New Yorkjurisdiction over misdemeanors prosecuted by indictment." State Constitution, article VI, §15 (a) directs that the "legislature shall by law establish . . . a single court ofcity-wide criminal jurisdiction in and for the city of New York."
Section 15 (c) provides that the court of city-wide criminal jurisdiction shall have"jurisdiction over crimes and other violations of law, other than those prosecuted by indictment,provided, however, that the legislature may grant to said court jurisdiction over misdemeanorsprosecuted by indictment; and over such other actions and proceedings, not within the exclusivejurisdiction of the supreme court, as may be provided by law" (NY Const, art VI, § 15 [c]).Section 15 (d) provides that the "provisions of this section shall in no way limit or impair thejurisdiction of the supreme court as set forth in section seven of this article" (NY Const, art VI,§ 15 [d]).
Pursuant to this constitutional mandate, effective September 1, 1962, the former Court ofSpecial Sessions was abolished and the New York City Criminal Court, of which the BronxCriminal Court is a part, was created.
It is the dissent's position that the authority of the Chief Judge and Chief Administrator totransfer all cases charging a class A misdemeanor from the Bronx Criminal Court to theBCD is expressly provided by article VI, § 28 of the State Constitution and section 211 (1)(a) and section 212 of the Judiciary Law. The dissent contends that this complete transfer powerdoes not run afoul of State Constitution, article VI, § 30, does not require legislativeconsent, cannot be defeated by statute and is free of the strictures that apply when individualcourt transfers occur under article VI, § 19 of the State Constitution.
This position cannot withstand scrutiny.
Under the 1962 state constitutional reorganization, the general supervisory powers formerlygranted to individual courts passed to the Administrative Board of the Judicial Conference (NYConst, art VI, § 28; see Matter of Bowne v County of Nassau, 37 NY2d 75, 79[1975]), composed of the Chief Judge of the Court of Appeals and the Presiding Justice of eachof the Appellate Division Departments. Effective in 1978, the State Constitution was againamended to vest in the Chief Judge the general supervisory powers formerly exercised by theAdministrative Board and to create the position of Chief Administrator of the Courts, to beappointed by the Chief Judge, with the advice and consent of the Administrative Board (NYConst, art VI, § 28 [a]).
Under article VI, § 28 (c), the Chief Judge, after consultation with the AdministrativeBoard, is empowered to "establish standards and administrative policies for generalapplication throughout the state, which shall be submitted by the chief judge to the court ofappeals, together with the recommendations, if any, of the administrative board. Such standardsand administrative policies shall be promulgated after approval by the court of appeals" (NYConst, art VI, § 28 [c] [emphasis added]).[FN2]Pursuant to Judiciary Law § 211 (1), this power includes, but [*4]is not limited to, standards and administrative policies relating to,among other things, (a) "the . . . transfer of judges and causes among the courts ofthe unified court system," and (b) "[t]he adoption . . . and implementation of rulesand orders regulating practice and procedure in the courts, subject to the reserved power of thelegislature provided for in section thirty of article six of the constitution."
State Constitution, article VI, § 30 provides that "[t]he legislature shall have the samepower to alter and regulate the jurisdiction and proceedings in law and in equity that it hasheretofore exercised. The legislature may, on such terms as it shall provide and subject tosubsequent modification, delegate, in whole or in part, to a court, including the appellate divisionof the supreme court, or to the chief administrator of the courts, any power possessed by thelegislature to regulate practice and procedure in the courts. The chief administrator of the courtsshall exercise any such power delegated to him or her with the advice and consent of theadministrative board of the courts. Nothing herein contained shall prevent the adoption ofregulations by individual courts consistent with the general practice and procedure as providedby statute or general rules."
Pursuant to State Constitution, article VI, § 28 (b), the Chief Administrator, on behalfof the Chief Judge, is empowered to "supervise the administration and operation of the unifiedcourt system. In the exercise of such responsibility, the chief administrator of the courts shallhave such powers and duties as may be delegated to him or her by the chief judge and suchadditional powers and duties as may be provided by law." Judiciary Law § 212 (1) (c)vests the Chief Administrative Judge with the power to fix "terms and parts of court. . . and make necessary rules therefor." Judiciary Law § 212 (2) (d) vests theChief Administrator with authority to "[a]dopt rules and orders regulating practice in the courtsas authorized by statute with the advice and consent of the administrative board of the courts, inaccordance with the provisions of section thirty of article six of the constitution."
Thus, under State Constitution, article VI, § 28 (b), the Chief Administrator'sadministrative power derives from two sources: (1) authority delegated by the Chief Judge whoconstitutionally is imbued with plenary authority over matters of administration, and (2)authority conferred by some other provision of law (see Bloom v Crosson, 183 AD2d341, 345 [1992], affd 82 NY2d 768 [1993]). However, the authority of the ChiefAdministrator with respect to policy formulation "is not broad and unlimited but is subject tobeing exercised in conformity with standards which have been established in accordance withconstitutional prescription" (Matter of Morgenthau v Cooke, 56 NY2d 24, 33 [1982]). Itis only with respect to the plenary authority to supervise the administration and operation of theUnified Court System delegated by article VI, § 28, as distinguished from policyformulation, that the Constitution "places no limitations on the duties the Chief Judge maydelegate to the administrator" (Corkum v Bartlett, 46 NY2d 424, 429 [1979]; seeMatter of Met Council v Crosson, 84 NY2d 328, 334-335 [1994]).
Under this state constitutional scheme, the authority to regulate the courts is divided betweenthe Legislature and the Chief Judge (see Bloom, 183 AD3d at 344), who may delegateauthority to the Chief Administrator. While under State Constitution, article VI, § 28 (b),the [*5]Chief Administrator is granted administrative andoperational authority over the courts, under the authority delegated by article VI, § 30, anyrules regulating jurisdiction, practice and procedure must be consistent with existing legislationand may be subsequently abrogated only by statute (see People v Ramos, 85 NY2d 678,687-688 [1995] ["these sources of broad judicial rule-making authority do not afford carteblanche to courts in promulgating regulations" and "no court rule can enlarge or abridgerights conferred by statute"]; Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d1 [1986]; Lang v Pataki, 271 AD2d 375, 376 [2000], appeal dismissed 95 NY2d886 [2000]; Bloom, 183 AD3d at 345-346).
The impact of the establishment of the BCD and the transfer of all pending andfuture Bronx County criminal cases charging class A misdemeanors from the Bronx CriminalCourt to the BCD under part 142 of the Rules of the Chief Administrator of the Courts farexceeds the routine operation and administration of the Unified Court System contemplated byState Constitution, article VI, § 28 (c) and Judiciary Law § 211 (1) (a) and §212 (1) (c). Bypassing the legislative process and/or a constitutional amendment, part 142imposes a policy determination that merges the Bronx Criminal Court and Bronx SupremeCourt, marginalizing the Bronx Criminal Court and effectively restructuring the constitutionalUnified Court System, the significance of which has not been discussed by the lower courts thathave addressed the Chief Judge's and Chief Administrator's authority to promulgate parts 42 and142, respectively.[FN3]Given this result, the Chief Judge's and Chief Administrator's "administrative" authority underState Constitution, article VI, § 28 and Judiciary Law § 211 (1) (a) and § 212(1) (c) must yield to the Legislature's reserved power to regulate practice and procedure in thecourts under article VI, § 30 and Judiciary Law § 211 (1) (b) and § 212 (2) (d)(see Matter of Morgenthau v Cooke, 56 NY2d 24 [1982], supra).
While the dissent complains that we unfairly label the Chief Judge's and ChiefAdministrator's exercise of their authority as "collapsing" or "eviscerating" the Bronx CriminalCourt, it does not dispute that parts 42 and 142 effectively deprive the Criminal Court of itsjurisdiction over class A misdemeanors, leaving the court a shell of its former self as a result ofthe merger.
Significantly, there is nothing in the State Constitution that contemplates the merger of theBronx Criminal Court into the Supreme Court. True, State Constitution article VI, § 15contemplated a possible future merger involving the city-wide criminal court, but this was ahorizontal integration, not a vertical integration. Specifically, section 15 (a) provides that theLegislature shall by law establish "a single court of city-wide civil jurisdiction and a single courtof city-wide criminal jurisdiction in and for the city of New York" and that "the legislature may,upon the request of the mayor and the local legislative body of the city of New York, merge thetwo courts into one city-wide court of both civil and criminal jurisdiction." Similarly, State [*6]Constitution, article VI, § 7 (a) and § 15 (c)demonstrate that the State Constitution contemplated an increase in the jurisdiction vested in theNew York City Criminal Court, providing that the Legislature may grant the Criminal Court"jurisdiction over misdemeanors prosecuted by indictment; and over such other actions andproceedings[ ] not within the exclusive jurisdiction of the supreme court" (NY Const, article VI,§ 15 [c]), not the elimination of the Criminal Court's jurisdiction effected by part 142,which transfers all cases charging class A misdemeanors to the newly created BCD.
The argument that article VI, § 30 has no application because the first sentence limitsthe Legislature's power to alter and regulate jurisdiction and proceedings in law and in equity to"that it has heretofore exercised" before voters ratified the 1962 version of the article, at whichtime there was no unified court system, is untenable. This interpretation, in contravention of theconstitutional and statutory provisions discussed above, would imbue the Chief Judge and ChiefAdministrator with absolute power over the Unified Court System and deprive the Legislature ofany say whatsoever with respect to their policies. Indeed, it would render superfluous the balanceof the section which provides that "[t]he legislature may, on such terms as it shall provide andsubject to subsequent modification, delegate, in whole or in part, to a court, including theappellate division of the supreme court, or to the chief administrator of the courts, any powerpossessed by the legislature to regulate practice and procedure in the courts."
Moreover, State Constitution, article VI, § 33 provides that the Legislature "shallenact appropriate laws to carry into effect the purposes and provisions of this article, and may,for the purpose of implementing, supplementing or clarifying any of its provisions, enact anylaws, not inconsistent with the provisions of this article, necessary or desirable in promoting theobjectives of this article." The section is consistent with article VI, § 30 which states thatthe Legislature "shall have the same power to alter and regulate the jurisdiction and proceedingsin law and equity that it has heretofore exercised," empowering the Legislature to stipulate themeans by which the Supreme Court may exercise the broad discretion granted under StateConstitution, article VI, § 7 (a) (see Matter of Morgenthau v Roberts, 65 NY2d749 [1985]; Rodriguez v Myerson, 69 AD2d 162 [1979], lv denied 48 NY2d 606[1979]).
No argument can seriously be made that part 142 does not run afoul of article VI, § 30because the BCD's rules and orders explicitly disclaim any change in procedure (22 NYCRR143.3), and therefore do not significantly affect the legal relationship between litigating parties.Such an argument would overlook that the eradication of the Criminal Court's jurisdiction overclass A misdemeanors caused by the promulgation of part 142 has altered the jurisdiction of thisCourt and the Appellate Term. Pursuant to the constitutional provision permitting the AppellateDivision to establish Appellate Terms within its Departments (NY Const, art VI, § 8 [a]),an Appellate Term has been created in this Department to hear appeals from the New York CityCivil Court and the New York City Criminal Court sitting in New York County and in BronxCounty (see 22 NYCRR 640.1). Under this rule, appeals of convictions for class Amisdemeanors emanating from the Criminal Court would be heard by the Appellate Term.Appeals from the trial and special terms of the Supreme Court are taken to the AppellateDivision (see CPLR 5701). However, as a consequence of the creation of the BCD,which is part of the Supreme Court, convictions for class A misdemeanors in the Bronx havenow been converted to Supreme Court judgments, which, under the current rules, has caused theappeals [*7]therefrom to be heard by this Court. In contrast, asimilarly situated defendant convicted of a class A misdemeanor in any other criminal courtwithin the City of New York does not have this presumed benefit and would have his appealheard by the Appellate Term, the appropriate forum.
Applying State Constitution, article VI, § 30, there is no legislative authority for thepromulgation of parts 42 and 142. As set forth above, the general laws that allow the Chief Judgeand Chief Administrator to oversee court operations cannot override the constitutionally createdstructure of the Unified Court System and collapse courts vertically, regardless of how laudableis part 42's stated purpose of promoting the administration of justice in the Bronx courts byeliminating past and avoiding future backlogs.[FN4]
State Constitution, article VI, § 19 (a) does not provide the Chief Administrator withthe requisite authority to promulgate part 142.[FN5]Article VI, § 19 (a) provides: "As may be provided by law, the supreme court maytransfer to itself any action or proceeding originated or pending in another court within thejudicial department other than the court of claims upon a finding that such a transfer willpromote the administration of justice." (Emphasis added.)
Although section 19 (a) grants Supreme Court a self-executing and virtually unlimited rightto transfer cases pending before it to another court with concurrent jurisdiction, it grantsSupreme Court only a limited power, "[a]s may be provided by law," to "transfer to itself anyaction or proceeding originated or pending in another court within the judicial department"(see Matter of Dalliessi v Marbach, 56 AD2d 858 [1977]).
In Dalliessi, the Court granted a CPLR article 78 petition which sought to prohibit aSupreme Court Justice from taking any further action with respect to a case brought in theCounty Court. In so doing, the Court held, in pertinent part: "The State Constitution (art VI,§ 19, subd a) provides, in relevant part, that 'the supreme court may transfer to itself anyaction or proceeding originated or pending in another [*8]courtwithin the judicial department . . . upon a finding that such a transfer will promotethe administration of justice.' However, this power is limited by an introductory phrase, 'as maybe provided by law.' CPLR 325 sets forth the grounds for removal of cases by the Supreme Courtfrom courts of limited jurisdiction and CPLR 326 establishes the 'procedure on removal.' CPLR325 does not authorize a transfer on the grounds set forth by the court herein. Under CPLR 326(subd [b]), an order of removal is required" (56 AD2d at 858).
Here, the transfer order is not "as provided by law" in that it conflicts with the legislativemandate embodied in CPL 210.05, which provides that "[t]he only methods of prosecuting anoffense in a superior court are by an indictment filed therewith by a grand jury or by a superiorcourt information filed therewith by a district attorney." As the Practice Commentaries to CPL210.05 explain: "This section limits the trial jurisdiction of superior courts to offenses chargedby Grand Jury indictment, or by superior court information . . . Accordingly,although superior courts have jurisdiction to try misdemeanors and petty offenses, as well asfelonies, this section bars prosecution of those offenses in a superior court where they arecharged in an accusatory instrument other than an indictment or a superior court information"(Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 210.05, at 85).
Nothing suggests that the Legislature intended to empower the Chief Judge or his or herdesignee to authorize exceptions to CPL 210.05, which dictates the means by which the SupremeCourt may exercise its jurisdiction. As the jurisdiction of the New York City Criminal Court isconstitutionally mandated by State Constitution, article VI, § 15 (c), which vests the courtwith jurisdiction over crimes and other violations of law, other than those prosecuted byindictment, the Chief Judge and Chief Administrator cannot effectively restructure the UnifiedCourt System to incapacitate the Bronx Criminal Court by administrative fiat alone and theBronx merger was beyond their administrative powers.
CPL 10.30 (1) does not provide the Chief Administrator with the requisite statutory authorityfor part 142. Under CPL 10.30 (1) (b), the Criminal Court has "[t]rial jurisdiction ofmisdemeanors concurrent with that of the superior courts but subject to divestiture thereof by thelatter in any particular case." "[I]n any particular case" contemplates the transfer of particularcases on a case by case basis, not a sweeping transfer of all present and future cases chargingclass A misdemeanors that has the effect of collapsing the constitutionally created BronxCriminal Court, thereby altering the jurisdictional structure of the Unified Court System.
Nor does the Legislature's use of the phrase "any particular case" in CPL 10.30 (1) (b), ratherthan use of a phrase that expressly limits divestiture to cases commenced by indictment, invitethe Supreme Court to divest the Criminal Court of jurisdiction in all cases, without exception.While CPL 10.20 (1) (b) grants the Supreme Court trial jurisdiction of misdemeanors"concurrent with that of the local criminal courts," this language simply accommodates theoccasional prosecution of misdemeanors by indictment—a situation in which the CriminalCourt would otherwise lack jurisdiction, necessitating a trial in Supreme Court (seePreiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 10.20).
Further, CPL 10.20 (2) provides that "[s]uperior courts have preliminary jurisdiction of all[*9]offenses, but they exercise such jurisdiction only by reason ofand through the agency of their grand juries." Under CPL 1.20 (25): "[a] criminal court has'preliminary jurisdiction' of an offense when, regardless of whether it has trial jurisdictionthereof, a criminal action for such offense may be commenced therein, and when such court mayconduct proceedings with respect thereto which lead or may lead to prosecution and finaldisposition of the action in a court having trial jurisdiction thereof."
Under CPL 100.05: "[t]he only way in which a criminal action can be commenced in asuperior court is by the filing therewith by a grand jury of an indictment against a defendant whohas never been held by a local criminal court for the action of such grand jury with respect to anycharge contained in such indictment. Otherwise, a criminal action can be commenced only in alocal criminal court, by the filing therewith of a local criminal court accusatory instrument."
Viewed together, CPL 10.20 (2), 1.20 (25) and 100.05 can only mean that although thesuperior court has original jurisdiction over a crime, an indictment must be handed down by agrand jury and filed in order to retain and exercise such jurisdiction (see People vHarper, 37 NY2d at 99 ["valid and sufficient accusatory instrument is a nonwaivablejurisdictional prerequisite to a criminal prosecution"]; People v Jackson, 153 Misc 2d270, 271 [Sup Ct, Bronx County 1991] ["a court's jurisdiction over a defendant in felony casesmust be based upon the decision of a Grand Jury as expressed in an indictment"]).
Further, while CPL 10.30 (1) (b) states that the Criminal Court's trial jurisdiction overmisdemeanors is "subject to divestiture" by Supreme Court, CPL 170.20 and 170.25 arenecessary to implement that divestiture.
CPL 170.20 (1) provides that "[i]f at any time before entry of a plea of guilty to orcommencement of a trial of a local criminal court accusatory instrument containing a charge ofmisdemeanor, an indictment charging the defendant with such misdemeanor is filed in a superiorcourt, the local criminal court is thereby divested of jurisdiction of such misdemeanor charge andall proceedings therein with respect thereto are terminated."
CPL 170.25 (1) provides that "[a]t any time before entry of a plea of guilty to orcommencement of a trial of a local criminal court accusatory instrument containing a charge ofmisdemeanor, a superior court having jurisdiction to prosecute such misdemeanor charge byindictment may, upon motion of the defendant made upon notice to the district attorney, showinggood cause to believe that the interests of justice so require, order that such charge be prosecutedby indictment and that the district attorney present it to the grand jury for such purpose."
There is no statutory authority for transfer of cases being prosecuted by misdemeanorinformation to Supreme Court unless the matter is referred to a grand jury and an indictmentobtained, or the right to indictment waived and a superior court information filed (CPL 210.05;[*10]see People v Gervais, 195 Misc 2d 129 [Crim Ct,NY County 2003] [criminal court is divested of jurisdiction over felony complaint whenindictment is filed with superior court]).
The dissent maintains that CPL 210.05 only limits how prosecutors invoke superior courtjurisdiction, and does not bar superior courts from obtaining transfers from other courts and thenapplying the procedures of those courts. In support of its argument that CPL 210.05 is " 'not alimitation directed to the courts, but rather . . . to prevent prosecutorial excess,' "the dissent quotes from People v Keizer (100 NY2d 114, 119 [2003]) and People vFord (62 NY2d 275, 282 [1984]) and cites People v Iannone (45 NY2d 589, 594[1978]). However, the quotes from the cited cases actually refer to article I, § 6 of the NYConstitution, not CPL 210.05. The power of the Supreme Court to transfer cases to itself iscircumscribed by article VI, § 19 (a), which enables it to do so "[a]s may be provided bylaw." Hence, article VI, § 19 (a) stands as a statutory obstacle to prosecution in a superiorcourt by an accusatory instrument other than indictment or prosecutor's information.
Nor is CPL 210.05 unconstitutional because it restricts the Supreme Court's jurisdiction. Asdetailed above, the State Constitution grants the Legislature the authority to provide for themanner in which the Supreme Court transfers an action or a proceeding originated or pending inanother court (see NY Const, art VI, § 19). Further, article VI, § 7 (a)'sbroad grant of jurisdiction to the Supreme Court is subject to "the exceptions, additions andlimitations created and imposed by the constitution and laws of the state" (Judiciary Law §140-b; see Sohn v Calderon, 78 NY2d 755, 766 [1991]).
In this regard, "trial jurisdiction" is defined in terms of whether a particular accusatoryinstrument "may properly be filed with such court" and whether "such court has authority to. . . try . . . such accusatory instrument" (CPL 1.20 [24]). Althoughsuperior courts have jurisdiction to try misdemeanors and petty offenses, as well as felonies,CPL 210.05 bars prosecution of those offenses in a superior court where they are charged in anaccusatory instrument other than an indictment or a superior court information. In this way, thesection regulates the manner in which a misdemeanor can be presented to the Supreme Court,which may only exercise its jurisdiction over misdemeanors when the prescribed procedure isfollowed.
Thus, the State Constitution grants the Legislature the power to enact statutes, such as CPL210.05, which implements the jurisdiction of courts and those statutes are part of a legitimatelegislative scheme to delineate functions of the constitutionally created Criminal Court of theCity of New York and reconcile its operation with the constitutionally mandated jurisdiction ofthe Supreme Court (see People vBarrow, 6 Misc 3d 945 [2005], supra).
We also note that while not dispositive, past efforts to restructure the Unified Court System,and to eliminate the Criminal Court, were attempted by proposing amendments to theconstitution, without success (see Judith S. Kaye, Chief Judge of the State of New York,State of the Judiciary Report, Jan. 23, 2005, at 63 [citing NY Senate Bill S7510, a court mergerbill introduced in the Senate but not enacted]).
Based on the foregoing, the promulgation of part 142 was beyond the authority of the ChiefAdministrator. Since the Chief Administrator was without authority to order the transfer, theSupreme Court never acquired jurisdiction to try and sentence defendant under a misdemeanorinformation (CPL 210.05; see People v Harper, 37 NY2d at 99; People v Wiltshire, 23 AD3d 86,88 [2005], lv denied 6 NY3d 840 [2006] [Supreme Court does not have jurisdiction toproceed on a felony complaint]).
Accordingly, we reverse defendant's conviction and, given that he has completed his [*11]sentence, dismiss the misdemeanor information (see People vFlynn, 79 NY2d 879, 882 [1992]). Concur—Andrias, J.P., Nardelli, Catterson andDeGrasse, JJ.
Acosta, J., dissents in a memorandum as follows: By striking down the Bronx CriminalDivision (BCD) and limiting the historically broad jurisdiction of the Supreme Court, themajority today, demonstrating unbridled judicial activism, effectively upends tens of thousandsof misdemeanor convictions adjudicated in Bronx County over the last five years and threatensto diminish the independence of the Judiciary. Because I believe that the Legislature, cognizantof the great wisdom inherent in the separation of powers doctrine, delegated to the Chief Judgethe authority to create the BCD, and because Supreme Court unquestionably possesses thejurisdiction to adjudicate nonindicted misdemeanors, I dissent.
This appeal arises from a controversy between the People of the State of New York and acriminal defendant named Edgar Correa. Neither Mr. Correa nor the People challenged thejurisdiction of the Supreme Court to adjudicate Mr. Correa's misdemeanor case, or the authorityof the Chief Judge to create the BCD during the trial proceedings. Nor did Mr. Correa raise sucha challenge in his initial brief before this Court. In fact, the issue the majority reaches out todecide today arises because the majority itself invited the litigants (and the Office of CourtAdministration, but not the Legislature or the Attorney General) to brief this judicially createdissue after the completion of oral arguments.
It is in this run-of-the-mill criminal appeal from a violation conviction (harassment in thesecond degree), that the majority today impedes the Chief Judge's rightful authority to implementcourt reform and in the process undermines the legal basis for the long-established integrateddomestic violence courts and the other problem-solving courts, where Supreme Court routinelyexercises jurisdiction over nonindicted misdemeanors.[FN1]
Notably, although the majority goes out of its way to protect the Legislature's so-called"reserved primary power to alter and regulate jurisdiction, practice and procedure" in the courts,the Legislature itself has not sought to intervene in this separation of powers controversy. Norhas the Legislature otherwise challenged the authority of the Chief Judge to create the BCDsince its formation in 2004. It is perplexing that the majority would choose to decide thisseparation of powers controversy when one of those powers—the legislative branch,whose "legislative process" the Chief Judge allegedly "[b]ypass[ed]" by creating theBCD—is conspicuously absent from the whole litigation.
The absence and silence of the legislative branch aside, it is difficult to understand why themajority strains to decide these issues and create the chaos that would result from the majority'sdecision, when the same issues are currently before the Court of Appeals in People v [*12]Wilson (59 AD3d 153 [2009], lv granted 12NY3d 790 [2009] [specifically, according to the preliminary statement, the "claimed improprietyin transfer of cases from criminal court to supreme court" is before the Court]), especially sincethe Court of Appeals has already approved the formation of the BCD in 2004 pursuant to themandatory requirement of article VI, § 28 (c) of the New York Constitution.[FN2]Although the majority properly acknowledges that the "authority to regulate the courts is dividedbetween the Legislature and the Chief Judge," it is the majority—not the Legislature, notthe Chief Judge, not the Chief Administrative Judge, not the Administrative Board of the Courtand not the Court of Appeals—which boldly and proactively "regulates" the operation ofthe courts today.
Having created the controversy—a controversy which, I believe, does not actuallyexist—the majority then decides it by usurping the authority statutorily given to theLegislature and the Chief Judge, and wreaking havoc not only in Bronx County, but numerouscourtrooms across the state, where the rationale for the problem-solving courts would beundermined. Remarkably, the majority does this not in the name of judicial independence but inthe name of legislative prerogative—on behalf of a legislative body which has not uttereda single word against the creation of the BCD. Under these circumstances, judicial restraint, notjudicial activism, is warranted.
Assuming for the sake of argument that this "controversy" is properly before us, I disagreewith the majority's holding that the Supreme Court's jurisdiction in criminal cases is limited tooffenses charged by grand jury indictment or by superior court information. Thus, in my opinion,these cases hinge on whether the Chief Judge and the Chief Administrator have the authority totransfer cases for adjudication in the BCD. After reviewing the relevant constitutional andstatutory provisions, it is my opinion that the Chief Judge and Chief Administrator acted wellwithin their authority.
New York Constitution, article VI, § 7 (a) states, in relevant part: "The supreme courtshall have general original jurisdiction in law and equity . . . In the city of NewYork, it shall have exclusive jurisdiction over crimes prosecuted by indictment, provided,however, that the legislature may grant to the city-wide court of criminal jurisdiction of the cityof New York jurisdiction over misdemeanors prosecuted by indictment." (See alsoJudiciary Law § 140-b.)[FN3]This constitutional grant of jurisdiction is "unlimited and [*13]unqualified" (Matter of Fry v Village of Tarrytown, 89NY2d 714, 718 [1997] [internal quotation marks omitted]; see Pollicina v Misericordia Hosp.Med. Ctr., 82 NY2d 332, 339 [1993] [Legislature may not impede even "one particle of(Supreme Court's) jurisdiction" (quoting Matter of Malloy, 278 NY 429, 432[1938])]; Sohn v Calderon, 78 NY2d 755, 766 [1991]; Kagen v Kagen, 21 NY2d532, 537 [1968]), rendering the Supreme Court "competent to entertain all causes of action[ ]"unless its jurisdiction is specifically proscribed (Thrasher v United States Liab. Ins. Co.,19 NY2d 159, 166 [1967]; see also Motor Veh. Mfrs. Assn. of U.S. v State of New York,75 NY2d 175, 184 n 3 [1990] [Supreme Court has jurisdiction over all claims arising in law orequity; "Legislature may grant concurrent jurisdiction to other courts of limited jurisdiction"]).The only such permissible limit on the Supreme Court's jurisdiction is to divest from theSupreme Court new actions not traditionally known at law or equity (see Sohn at 766;Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143, 152-153 [1983]; NYConst, art VI, § 7 [b]). Any other attempt to limit the Supreme Court's jurisdiction is void(see Busch Jewelry Co. v United Retail Employees' Union, 281 NY 150, 156 [1939];Matter of Malloy, 278 NY 429, 432 [1938]; People ex rel. Swift v Luce, 204 NY478, 487 [1912]; People v Darling, 50 AD2d 1038 [1975]; Jones, 18 Misc 3d at65).
The Supreme Court has enjoyed misdemeanor jurisdiction continuously since its inception asthe Supreme Court of Judicature in 1691 (see 1 Lyon, Colonial Laws of New York[1664-1719], at 229; Darling, 50 AD2d at 1038-1039; People ex rel. Folk vMcNulty, 256 App Div 82, 90-91 [1939] [tracing Supreme Court jurisdiction to EnglishCourt of Kings Bench, which could divest lower courts of jurisdiction], affd 279 NY 563[1939]; People ex rel. Constantinople v Warden of Rikers Is., 72 Misc 2d 906 [Sup Ct,Bronx County 1972]; People v Ruttles, 172 Misc 306 [Sup Ct, Orange County 1939]).As such, misdemeanors constitute a "traditional categor[y] of actions at law and equity,"jurisdiction over which article VI irrevocably vests in the Supreme Court concurrent with suchother courts as the Legislature may provide (Sohn, 78 NY2d at 766).
Although article VI, § 15 (a) called for the creation of a city-wide criminal court andsection 15 (c) vested that court with jurisdiction over nonfelonies, those provisions did not divestSupreme Court of its original general jurisdiction. Indeed, article VI, § 15 (d) specificallyprovides that "provisions of this section shall in no way limit or impair the jurisdiction of thesupreme court as set forth in section seven of this article." Notably, the Criminal Court was notvested with "exclusive" jurisdiction over nonindicted misdemeanors and lesser offenses in themanner in which Supreme Court was for crimes prosecuted by indictment. Thus, the SupremeCourt, a superior court (see CPL 10.10 [2] [a]), enjoys both "[t]rial jurisdiction ofmisdemeanors concurrent with that of the local criminal courts" (CPL 10.20 [1] [b]), includingthe New York City Criminal Court (see CPL 10.10 [3] [b]), and the power to divest theCriminal Court of its trial jurisdiction "in any particular case" without exception (CPL 10.30 [1][b]).[*14]
Although the majority cites to various statutoryprovisions to conclude that Supreme Court's jurisdiction is limited to adjudicating indictedmisdemeanors (and indicted felonies and superior court informations), the majority simplycannot get around the plain language and obvious import of the long-standing constitutional andstatutory provisions. Read together, these provisions demonstrate that the SupremeCourt—a court of "general original jurisdiction in law and equity" (NY Const, art VI,§ 7 [a])—has jurisdiction over all criminal matters and that its jurisdiction isexclusive with respect to felonies, which must be prosecuted by indictment or superior courtinformation.
CPL 210.05, which states that "[t]he only methods of prosecuting an offense in a superiorcourt are by an indictment filed therewith by a grand jury or by a superior court information filedtherewith by a district attorney," does not alter this result inasmuch as it does not limit thesuperior court's jurisdiction, but only the method for prosecutors to invoke thatjurisdiction, and thus does not bar a superior court from itself obtaining a case pursuant to aproper transfer order: "By choosing the words 'prosecution' and 'prosecute,' it is clear that theLegislature was directing [CPL 210.05] to the district attorneys, whose job it is to prosecute, andnot to the courts. Courts do not have the power to 'prosecute' cases; that job is constitutionallyexercised by the executive branch of the government, through its agents, the district attorneys.(Matter of McDonald v Sobel, 272 App Div 455, 461 [2d Dept 1947], affd 297NY 679 [1947].) Decisions about whether a case is to be prosecuted by indictment are usuallyleft to the district attorney. (See People v Di Falco, 44 NY2d 482, 487 [1978].) Becauseof the specific words chosen by the Legislature, CPL 210.05 should be read only as an 'act ofsanction,' and not as an act intending to limit the power of the superior courts, conveyed via theConstitution, to preside over misdemeanor cases. (See People v Allen, 301 NY 287,289-290 [1950].)" (People vMarrero, 8 Misc 3d 172, 178-179 [Sup Ct, Bronx County 2005] [upholding BCD].)
As Marrero noted, CPL 210.05 relates back to the CPL 170.20 invitation that thePeople, prior to entry of a guilty plea to or commencement of a trial of a local criminal courtaccusatory instrument, may adjourn the proceedings to present a nonfelony charge to a grandjury (see CPL 170.20 [2]). By thus obtaining and filing an indictment, theprosecutor divests the local criminal court of its jurisdiction (see CPL 170.20[1]). Likewise, a defendant may apply for an order directing the People to present the charge to agrand jury (see CPL 170.25 [1]), and on the filing of an indictment, the prosecutorlikewise divests the local criminal court of jurisdiction (see CPL 170.25 [2]; see alsoPeople v Jones, 18 Misc 3d at 65 [CPL 210.05 "is directed at the District Attorney," and it"circumscribes a prosecutor's ability to invoke a superior court's jurisdiction," not the court'sindependent ability to assert jurisdiction]). As Jones points out, the absence of anindictment is not fatal to the BCD's capacity for trying misdemeanor informations, both becausearticle I, § 6 constitutional limitations on felony prosecutions are not implicated andbecause, pursuant to CPL 100.10 (1), an information is a sufficient basis for both thecommencement and the prosecution of a misdemeanor case (Jones at 65-66).
This construction of CPL 210.05 is consistent with its legislative history, which shows thatthe statute's sole purpose was to implement a now-relaxed right to indictment of all crimes [*15]in all courts, not to limit the Supreme Court's powers as againstthose of local courts.[FN4]After all, [*16]the indictment requirement to which CPL 210.05refers is " 'not a limitation directed to the courts, but rather to the State, and its function is toprevent prosecutorial excess' " (People v Keizer, 100 NY2d 114, 119 [2003], quotingPeople v Ford, 62 NY2d 275, 282 [1984]; see People v Iannone, 45 NY2d 589,594 [1978]; Jones, 18 Misc 3d at 65). To that end, the purpose of CPL 210.05 is only tolimit prosecutorial discretion to invoke a superior court's jurisdiction (see Jones, 18 Misc3d at 65; Marrero, 8 Misc 3d at 179; People v Turza, 193 Misc 2d at 434), apurpose likewise manifest in CPL article 170. Here, by contrast, the challenged BCDproceedings cannot possibly suggest prosecutorial excess because the Judiciary and not thePeople effected the transfer of appellant's case.
Given that Supreme Court has jurisdiction over nonindicted misdemeanors, the only issuethat remains, in my opinion, is whether the Chief Judge and Chief Administrator have theauthority to direct the transfer of cases to the BCD. Although the majority unfairly labels theexercise of this authority as "collapsing" or "eviscerat[ing]" the Criminal Court, the authority todivest and transfer cases is expressly provided by article VI, § 28 of the State Constitutionand sections 211 and 212 of the Judiciary Law.
Initially, although parts 42 and 142 cast a wide net in transferring "some or all classes ofcases pending in the Criminal Court of the City of New York in Bronx County in which at leastone felony or misdemeanor is charged therein" (22 NYCRR 42.1 [c]), it is inaccurate to assertthat the BCD "collapse[d]" or "eviscerate[d]" the Criminal Court inasmuch as the Criminal Courtin Bronx County continues to exist, arraigning tens of thousands of cases each year andotherwise adjudicating tens of thousands of accusatory instruments charging violations andsummonses charging violations and unclassified misdemeanors (Criminal Court of the City ofNew York Annual Report 2008, at 24, 27, 39 [published by the Office of the Deputy ChiefAdministrative Judge, New York City]). The annual report indicates that in 2008 Bronx CriminalCourt adjudicated 120,331 summonses (id. at 39) and 76,923 cases in arraignments(id. at 27). Most of the cases arraigned were misdemeanors (57,588 out of 76,923) andhalf (48.9%) of the cases arraigned were disposed of in Bronx Criminal Court (38,323dispositions out of 76,923 arraigned cases) (see id. at 36). Given the foregoing statistics,it is likewise completely inaccurate to assert that the creation of the BCD "depriv[ed] [BronxCriminal Court] of its jurisdiction over class A misdemeanors."
In any event, article VI, § 28 specifically empowers the Chief Judge to direct thetransfer of cases when the interests of effective court administration so require. Judiciary Law§ 211 (1) (a) provides that "[t]he chief judge, after consultation with the administrativeboard, shall establish standards and administrative policies for general application to the unifiedcourt system throughout the state, including but not limited to standards and administrativepolicies relating to . . . [the] transfer of judges and causes among the courts of theunified court system." This legislative articulation of the Chief Judge's authority, which derivesfrom section 28 of article VI, reflects the well-settled constitutional law that the power to transfercases—independent of CPL provisions governing Supreme Court divestiture of criminalcourt actions (see CPL 170.20 [1]; 170.25 [1])—resides in the Chief Judge toeffectuate systemic interests of efficient court administration. The only conditions on thisauthority are that the transferee court must have [*17]jurisdictionover the subject matter of the transferred case and the Chief Judge must first consult with theAdministrative Board of the Courts and then obtain Court of Appeals consent beforepromulgating standards and administrative policies effectuating the transfer (see NYConst, art VI, § 28 [c]; Judiciary Law § 211 [1]).
Moreover, the Legislature vested in the Chief Administrative Judge the power to fix "termsand parts of court . . . and make necessary rules therefor" (Judiciary Law §212 [1] [c]). This authority likewise flows from article VI, which vests in the ChiefAdministrative Judge such power as the Chief Judge delegates and such further power as theLegislature prescribes (see NY Const, art VI, § 28 [b]).
Thus, section 28 and Judiciary Law § 211 (1) invite the Chief Judge to direct thetransfer of cases among the courts after consulting the Administrative Board and with consent ofthe Court of Appeals. The only limit on this power is that transferred cases must be routed tocourts that the Constitution vests with subject matter jurisdiction over them. Of course, the ChiefJudge may exercise this authority when systemic needs of effective court administration sorequire. Section 28, however, does not impose on the Chief Judge the obligation to obtainlegislative consent prior to exercising this authority. To do so would vitiate the intent of theframers and the Legislature that section 28 separately empowers the Chief Judge to use suchtransfers to serve the system-wide administration of justice, free of the strictures that apply whenindividual courts transfer cases under section 19 alone.[FN5]Moreover, any other result would belie the well-settled separation of powers axiom that coresection 28 powers of court administration, including the Chief Judge's administrative transferpower, are "complete" and cannot be defeated by statute (Matter of Met Council vCrosson, 84 NY2d 328, 335 [1994]; Matter of Bellacosa v Classification Review Bd. ofUnified Ct. Sys. of State of N.Y., 72 NY2d 383, 388 [1988]; Corkum v Bartlett, 46NY2d 424, 429 [1979]; cf. McCoy v Helsby, 28 NY2d 790, 791 [1971] [protectingJudiciary's "basic fibre of administrative power" against statutory intrusion]).
Accordingly, the Chief Judge, after consulting the Administrative Board and with consent ofthe Court of Appeals, properly promulgated part 42 to provide for the BCD's creation and thetransfer of Criminal Court cases to reduce calendar congestion and ensure efficient judicialadministration (see NY Const, art VI, § 28 [c]; Judiciary Law § 211 [1] [a]).Because the Chief Administrative Judge must supervise the operation of the courts on the ChiefJudge's behalf in accordance with such delegations and standards and administrative policies asthe Chief Judge may provide (see NY Const, art VI, § 28 [b]; Judiciary Law§ 212 [1]), part 142 and the subsequent administrative orders effectuating the ChiefJudge's part 42 directive were valid. Thus, the BCD's transfer and adjudication of Criminal Courtcases pursuant to the foregoing rules and administrative orders also were valid.
Once superior courts obtain trial jurisdiction over cases by proper transfer order moving thecases from local criminal courts, the CPL 210.05 provisions governing how prosecutors wouldinvoke that same jurisdiction become moot. How superior courts then handle the transferredcases turns on what rules then govern them. Here, transferred Criminal Court cases proceed inthe BCD under the same substantive and procedural laws as apply in the Criminal Court(see Rules of Chief Administrator of Cts [22 NYCRR] § 142.3).[*18]
Contrary to the majority's holding, this result is notinconsistent with article VI, § 30 of the State Constitution. That section states: "Thelegislature shall have the same power to alter and regulate the jurisdiction and proceedings inlaw and in equity that it has heretofore exercised. The legislature may, on such terms as it shallprovide and subject to subsequent modification, delegate, in whole or in part, to a court,including the appellate division of the supreme court, or to the chief administrator of the courts,any power possessed by the legislature to regulate practice and procedure in the courts. The chiefadministrator of the courts shall exercise any such power delegated to him or her with the adviceand consent of the administrative board of the courts. Nothing herein contained shall prevent theadoption of regulations by individual courts consistent with the general practice and procedure asprovided by statute or general rules." Indeed, section 30 limits the Legislature to such proceduralpowers as it "heretofore exercised" before voters ratified the 1962 version of article VI (NYConst, art VI, § 30). Before 1962, however, there was no Unified Court System, no centralcourt administration and no administrative transfer power. As section 30 merely continued theLegislature's then-existing procedural powers while section 28 created a new centralizedadministrative transfer power in that same year, section 30 cannot possibly empower theLegislature to limit section 28 transfers. That result reinforces the separation of powers axiomthat no statute can impede the Judiciary's "complete" section 28 self-governance powers (seeMet Council, 84 NY2d at 335; Bellacosa, 72 NY2d at 388; Corkum, 46NY2d at 429; cf. McCoy, 28 NY2d at 791).
Moreover, the Court of Appeals has instructed that nothing in section 30 bars the Judiciaryfrom enacting rules that hold harmless the rights of litigating parties (cf. People vRamos, 85 NY2d 678, 687-688 [1995] [section 30 generally bars court rules that "invaderecognized rights of person or property," "significantly affect the legal relationship betweenlitigating parties" or otherwise "enlarge or abridge rights" (quoting McQuigan v Delaware,Lackawanna & W. R.R. Co., 129 NY 50, 55 [1891])]). The BCD's rules and orders, bycontrast, explicitly disclaim any such change in procedure (see 22 NYCRR 142.3 [eachcase transferred to the BCD "shall be subject to the same substantive and procedural law aswould have applied to it had it not been transferred"]). Because procedures fixed by theLegislature for trying misdemeanors continue to apply unchanged after transfer, the BCD doesnot impair or abridge any litigant's procedural rights under Ramos. Thus, far fromintruding on the Legislature's section 30 powers, section 142.3 fully respects their exercise.
Even if section 30 could extend to case transfers and bar the BCD's rules underlying thetransfer and adjudication of defendant's case, section 30 invites the Legislature to delegate itsprocedural powers either to individual courts or the Chief Administrative Judge (see NYConst, art VI, § 30). Here the Legislature did both. To the Supreme Court, the Legislaturedelegated the CPL 10.30 (1) (b) power to divest "any particular case" from local courts. To theChief Administrative Judge, the Legislature delegated the power to establish "terms and parts ofcourt . . . and make necessary rules therefor" consistent with the Chief Judge'sdirectives (Judiciary Law § 212 [1] [c]). These delegations fully support the transfer ofdefendant's case for disposition in the BCD.
Finally, the majority's heavy reliance upon New York Constitution, article VI, § 15(a), which directs the Legislature to "by law establish a single court of city-wide civil jurisdictionand [*19]a single court of city-wide criminal jurisdiction in andfor the city of New York," ignores the import of section 15 (d), which provides that the creationof such a city-wide court "shall in no way limit or impair the jurisdiction of the supreme court."In other words, the Legislature's creation of a single court of city-wide criminal jurisdiction doesnot in any way limit Supreme Court's general jurisdiction, or its broad authority to transfer casesor divest cases from the court of city-wide criminal jurisdiction.
In short, by conferring the transfer power in such broad terms to the Chief Judge (JudiciaryLaw § 211 [1] [a]) and to the Supreme Court (CPL 10.30 [1] [b]), the legislative branchproperly recognized that the independent, third branch of government—theJudiciary—was in the best position to implement modifications pursuant to article VI,§ 28 designed to make court operations more efficient, even significant modificationswhich merge Criminal Court into Supreme Court.
I, too, recognize that the Legislature should have a say in the policy decisions regarding theoperation of the courts. And they have said their piece loudly and clearly—in JudiciaryLaw § 211 (1) (a), in CPL 10.20 (1) (b), in CPL 10.30 (1) (b), and in Judiciary Law§ 212 (1) (c).
Footnote 1: A superseding information inthe BCD charged defendant with an additional class A misdemeanor and violation.
Footnote 2: One may note that part 142 ofthe Rules of the Chief Administrator of the Courts is limited to procedure in Bronx County anddoes not "establish standards and administrative policies for general application throughout thestate."
Footnote 3: See People v Jones, 18 Misc 3d63 (App Term, 1st Dept 2007), lv denied 10 NY3d 767 (2008); People v Butler, 11 Misc 3d 547(Sup Ct, Bronx County 2005); People vMarrero, 8 Misc 3d 172 (Sup Ct, Bronx County 2005); People v Gonzalez, 6Misc 3d 1034(A), 2005 NY Slip Op 50291(U) (Sup Ct, Bronx County 2005); People v Barrow, 6 Misc 3d 945(Sup Ct, Bronx County 2005); People vRobinson, 6 Misc 3d 645 (Sup Ct, Bronx County 2004).
Footnote 4: According to a June 2009Report on the Merger of the Bronx Supreme and Criminal Courts, prepared jointly by theCommittee on Criminal Courts and the Committee on Criminal Justice Operations of theAssociation of the Bar of the City of New York, the stated purpose of the merger has not beenachieved in that it "has had the unintended consequence of creating a far greater backlog infelony trials" (at 2). The report recommends (at 9) that "[u]nless and until it can be demonstratedthat Merger can be achieved without deleterious effects on the adjudication of felony cases, itmust be deemed a failure which should not be extended to other counties."
Footnote 5: While the dissent posits that thepower of the Chief Judge is free of the strictures that apply when individual transfers occur underState Constitution, article VI, § 19, this, as indicated above, is without merit and ignoresthat the Administrative Judge of Bronx County's order effecting the transfer references articleVI, § 19 (a) as a source of his authority.
Footnote 1: See Wise, JudgesFire Queries on Court Merger Coming in Bronx, NYLJ, Oct. 29, 2004, at 1, col 3; seealso People v Turza, 193 Misc 2d 432 (Sup Ct, Suffolk County 2002) (upholding transfer ofmisdemeanor cases to Supreme Court).
Footnote 2: The Court of Appeals deniedleave to appeal in the only appellate case which squarely addressed the issues raised here (see People v Jones, 18 Misc 3d 63[App Term, 1st Dept 2007], lv denied 10 NY3d 767 [2008] [upholding constitutionalityof Bronx merger]).
Footnote 3: Judiciary Law § 140-bstates: "The general jurisdiction in law and equity which the supreme court possesses under theprovisions of the constitution includes all the jurisdiction which was possessed and exercised bythe supreme court of the colony of New York at any time, and by the court of chancery inEngland on the fourth day of July, seventeen hundred seventy-six, with the exceptions, additionsand limitations created and imposed by the constitution and laws of the state. Subject to thoseexceptions and limitations the supreme court of the state has all the powers and authority of eachof those courts and may exercise them in like manner."
Footnote 4: CPL 210.05 derives fromsection 222 of the 1888 Code of Criminal Procedure, which effectuated the then-applicablerequirement that all crimes be prosecuted by indictment regardless of the offense charged or thecourt adjudicating it, but which later was amended to allow defendants to waive grand jurypresentation: "All crimes prosecuted in a supreme court, or in a county court, or in a city court,must be prosecuted by indictment. But, where a defendant has been held to answer to any ofthese courts, that court, or any of said courts to which he might have been held to answer, may,on the application in writing of the defendant, direct any information to be filed against him forthe offense for which he stands charged . . . When the information is filed, thedefendant must be arraigned thereon and the court must proceed to trial in the same manner as ifan indictment had been presented by a grand jury." (Code Crim Pro § 222, as amended byL 1927, ch 597.)
In 1928, the Court of Appeals struck down the amended Code of Criminal Procedure §222 because the Constitution did not then allow waiver of grand jury presentation of felonies(see People ex rel. Battista v Christian, 249 NY 314, 318-319 [1928]). In 1941, partly torelieve the resulting spike in superior court arraignments, the Judiciary proposed a Uniform CityCourt Act to vest in the city courts concurrent trial jurisdiction of crimes prosecuted byinformation and preliminary jurisdiction to arraign all offenses (see 7th Ann Report ofNY Jud Council, at 153-260 [1941]). In adopting that proposal, lawmakers restored Code ofCriminal Procedure § 222 by excising the waiver clause that Battista had struckdown (see L 1941, ch 255, § 11).
The statute continued unchanged until the 1971 Legislature recodified the Code of CriminalProcedure as the modern Criminal Procedure Law, converting the section 222 mandate that "[a]llcrimes" be indicted into the CPL 210.05 provision that the "only" way to prosecute would be byindictment (see L 1970, ch 996). Critically, this recodification effected no change inmeaning: as Governor Rockefeller wrote, the CPL's purpose was to rationalize disparate lowercourt systems, not infringe the Supreme Court's powers (see Governor's Mem approvingL 1970, ch 966, 1970 McKinney's Session Laws of NY, at 3140; Comm on Rev of Penal Lawand Crim Code Mem in Support, 1970 NY Legis Ann, at 37). In 1973, voters addressed the 1928Battista decision by amending the Constitution to allow prosecution by SCI (superiorcourt information) (see NY Const, art I, § 6). The Legislature then achieved thecurrent CPL 210.05 by conforming it to this new SCI authority (see L 1974, ch 467,§ 13).
Footnote 5: Criminal Procedure Law§ 10.30 (1) (b) states that the Supreme Court has the power to divest the Criminal Court ofits trial jurisdiction "in any particular case" (emphasis added).