Opinion
January 22, 1979
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered April 15, 1977, convicting him of assault in the second degree, upon a plea of guilty, and imposing sentence. Case remitted to the Family Court for further proceedings in accordance herewith. The appeal is held in abeyance in the interim. This case stems from the alleged stabbing of the complainant on June 12, 1974 by her husband, the defendant. Although the defendant was originally indicted in 1974 for attempted murder, assault in the first degree, and felonious possession of a weapon, that indictment was dismissed, on motion of the District Attorney. At the same time, an application was made by the District Attorney to transfer the matter to the Family Court on the ground that it had exclusive jurisdiction over this case. This motion was likewise granted. However, correspondence between an Assistant District Attorney and a clerk of the Family Court indicates that the matter was referred back to the Criminal Term of the Supreme Court on June 18, 1975. Thereafter, the defendant was reindicted for the same crimes charged in the original indictment. In our opinion the record is not clear as to whether the defendant or his attorney (if he had one) was given notice of the impending transfer of the matter back to the Criminal Term. Notice to defendant was required since he had the right to challenge the Family Court transfer order either by motion (see Family Ct Act, former § 816, subd [b]), or directly by appeal (see Family Ct Act, § 1112; People v. Bell, 41 A.D.2d 583). The determination of whether a matter should be transferred is critically important to a defendant and should not be made when he is without counsel (People v. Hopkins, 49 A.D.2d 682, 683). Accordingly, in the interest of justice this matter should be remitted to the Family Court to hear and report on whether defendant received notice of the Family Court action and whether such action was taken either when defendant was without counsel or without the knowledge of counsel (see People v Hopkins, supra, p 683). Damiani, J.P., Titone, Suozzi and Shapiro, JJ., concur.