Opinion
May 23, 1958
This is an appeal from an order of the Clinton County Court sustaining a writ of habeas corpus on behalf of the relator to the extent that the said relator was remanded to the Sheriff of Rensselaer County for presentation before the New York State Supreme Court for such action as the Supreme Court deems proper. The order was made following a hearing before the court and the sole question was whether the indictment here was regularly transferred from the Supreme Court to the Rensselaer County Court. The relator herein relies upon Exhibit No. 1 which purports to be the minutes of the Supreme Court stenographer at the time of the arraignment of the said relator on the 28th day of April, 1949. Respondent relies upon Exhibit "A", the same stenographic minutes as in relator's Exhibit No. 1 except respondent's exhibit incorporates what appears to be all of the proceedings at the time of the arraignment, including transfers of the indictments to the Rensselaer County Court, the said minutes being certified as the correct transcript of the proceedings by the Supreme Court stenographer. The proof is conclusive that a proper transfer took place. A Supreme Court stenographer is an officer of the court. (Judiciary Law, § 290.) The proper practice for the office of District Attorney in any county where indictments are transferred from the Supreme to the County Court, in the absence of a formal order, is to obtain copies of the minutes of the arraignment and transfer and file the original in the County Clerk's office. This will eliminate confusion such as here and in many other cases that come before the court. People ex rel. Albanese v. Hunt ( 266 App. Div. 105, 108, affd. 292 N.Y. 528) has been cited with reference to the necessity of over-coming the presumption of regularity. There is no necessity for presumption in this case as the testimony itself with reference to the transfer is before the court. The order of the Clinton County Court is reversed and the relator, James Francis Hughes, remanded to the custody of the Warden of Clinton Prison, Dannemora, New York, and the writ dismissed. Bergan, J.P., Coon, Gibson, Herlihy and Reynolds, JJ., concur.