Opinion
January 15, 1915.
Stephen C. Baldwin, for the appellant.
James C. Cropsey, District Attorney [ Hersey Egginton, Assistant District Attorney, with him on the brief], for the respondent.
The appellant asks that so much of the order as remits the indictment for trial to the County Court of Kings county be reversed, and the learned district attorney contends that we are without power to consider this appeal for the reason that no independent direct appeal is authorized. The law, as established by a long and uniform line of decisions, is, as stated by the Court of Appeals in its latest utterance upon the subject, "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.) The Code of Criminal Procedure provides a system of practice and procedure, extensive and complete in itself, governing the procedure in all criminal cases, including appeals. (Code Crim. Proc. §§ 515, 962; People v. Green, 137 App. Div. 763.) Section 517 of the Code of Criminal Procedure specifies the only appeal and method of review available to defendant in a criminal action, and under the provisions of that section orders may be reviewed only as intermediate orders, incidental to, and upon, an appeal from the judgment of conviction. Orders may not be reviewed by a direct appeal independent of an appeal from a judgment of conviction. ( People v. Zerillo, supra; People v. Green, supra; Matter of Jones, 181 N.Y. 389; People v. Trezza, 128 id. 529; Matter of Montgomery, 126 App. Div. 72; People v. Wendel, 128 id. 437; People v. Martin, No. 1, 99 id. 372; People v. Rutherford, 47 id. 209; People v. Lazersohn, 147 id. 227; People v. Markham, 114 id. 387; People v. Kahn, 155 id. 821; People v. Hyde, 146 id. 633; People v. Herbert, 152 id. 579; People ex rel. Hummel v. Trial Term, 184 N.Y. 30. ) It is contended by the learned counsel for appellant that the provisions of section 517 do not apply to the appeal under consideration because of the language, which he construes as prohibiting the review of an intermediate order upon an appeal from a judgment of conviction, unless it forms a part of the judgment roll as the same is prescribed by section 485. He argues that the order is not an intermediate order, and directs our attention to People v. Jackson ( 114 App. Div. 697). In that case the order under consideration denied defendant's motion for a change of venue, in a criminal action, from one county to another, and the court held that it was not an intermediate order but in the nature of a special proceeding, from which an appeal was authorized by the Code of Civil Procedure. In People v. McLaughlin, No. 1 ( 2 App. Div. 408), the same doctrine was held, but on appeal the Court of Appeals ( 150 N.Y. 365, 377) repudiated it, saying: "If this were a proceeding in a civil action section 772 of the Code of Civil Procedure might be sufficient to authorize the court to vacate or modify the order. But it was a proceeding in a criminal action, and by virtue of the provisions of section 962 of the Code of Criminal Procedure is regulated by that Code and not by the Code of Civil Procedure." This destroys the weight of the authority cited to sustain the contention that the order under consideration is not an intermediate order. While such an order is not specifically mentioned in the provisions of section 485 of the Code of Criminal Procedure as forming part of the judgment roll, I am of the opinion that it is embraced in the general provisions of that section and could be properly made a part of the judgment roll ( People ex rel. Hummel v. Trial Term, supra, 30; People v. Kahn, supra, 824), and that no independent appeal lies from the order.
Our attention is called to some cases which are exceptions to the general rule, viz., that no direct appeal lies from orders in criminal actions which can be reviewed upon appeal from the judgment of conviction. In People v. Butts ( 121 App. Div. 226) it was held that an order denying defendant's motion for a certificate that his case be prosecuted by indictment, instead of trial at Special Sessions, was appealable, although not specifically authorized by section 1409 of the charter of the city of New York (Laws of 1901, chap. 466), upon the ground that the right to review the decision of a single judge, when a substantial right is involved, is fundamental and deemed to exist; and Matter of Brady ( 69 N.Y. 215) was cited to sustain this conclusion. That was a civil action, however, and general statutory provisions permitting appeals in that class of cases existed. The question discussed was whether such general statutory right had been limited by any special statute subsequently enacted, and it was held that unless it clearly appeared by a later special statute that the general statutory right to appeal was not to apply, it was deemed to exist; in other words, there was a general statutory right of appeal which was deemed to exist unless expressly limited by a later special statute. In the case at bar there is no inherent right of appeal. The only section of the Code of Criminal Procedure giving defendant the right of appeal in a criminal action is limited to an appeal from a judgment of conviction, and by implication excludes the right of appeal from an order, and limits the review of an intermediate order to the appeal from the judgment of conviction. (See Code Crim. Proc. § 517.) This appeal cannot be entertained, and it must be dismissed.
THOMAS and PUTNAM, JJ., concurred; BURR, J., concurred in separate memorandum.
I concur. Personally, I think the defendant may not be without practical remedy even if the order appealed from was improperly made. Authority is given to move to change the place of trial from a County Court to a term of the Supreme Court held in another county, on the ground that a fair and impartial trial cannot be had in the county where the indictment is pending. (Code Crim. Proc. § 344, subd. 2.) While such motion must be made in the Supreme Court (Code Crim. Proc. § 346), it is not necessary in order to make such motion that the indictment should be transferred from the County Court to the Supreme Court in the county where it was found. ( People v. Green, 201 N.Y. 172.)
Appeal dismissed.