Opinion
November 9, 1961
Frank S. Hogan, District Attorney ( Richard Uviller, Melvin Glass and David Goldstein of counsel), for plaintiff.
Stephen Fuschino for defendants.
This court (MARKS, J.), upon the recommendation of the Grand Jury, directed the District Attorney to file an information in Gamblers' Court of the City Magistrates' Court charging this defendant with the crimes of possession of policy slips and keeping a place for the game of policy. Such direction was pursuant to section 272-a of the Code of Criminal Procedure, effective July 1, 1961, giving a Grand Jury in the City of New York authority to recommend, with the approval of the court, that a charge of gambling pending before it be prosecuted as a misdemeanor by the filing of an information in the Magistrates' Court. The information was thereupon so filed.
This defendant now moves this court for an order: (1) suppressing the evidence obtained by an alleged unlawful search and seizure or in the alternative, granting a hearing with respect thereto; (2) authorizing an inspection of the Grand Jury minutes and upon such inspection, dismissing the information against defendant.
Since this case has been transferred to the Magistrates' Court pursuant to statutory authority and an information has been filed therein against defendant, this court is divested of jurisdiction except with respect to the matter of inspection of Grand Jury minutes, which at all times rests in the sound discretion of this court. Inasmuch as the sole issue raised relates to an alleged illegal search and seizure, the resolution of which involves the question of probable cause, inspection of the Grand Jury minutes, which are not required to and do not in this case make reference to such matter, would serve no useful purpose.
The other relief requested on these two motions must be addressed to the court in which the charge is pending. The motions are accordingly denied.