Opinion
April 12, 1966
George E. Mulry for defendant.
William Cahn, District Attorney, for plaintiff.
The defendant moves, pursuant to section 57 of the Code of Criminal Procedure, to be prosecuted by indictment, and to stay the proceedings pending in the District Court.
The defendant is charged, in several informations, with serving alcoholic beverages to minors in violation of the Alcoholic Beverage Control Law, and of allowing minors under the age of 16 to frequent a place where liquors are sold, unaccompanied by a parent or guardian, in violation of subdivision 1 of section 484 of the Penal Law.
Section 57 of the Code of Criminal Procedure provides for the removal of cases from the District to the County Court upon an appropriate showing, and the burden of proof is on the defendant to establish that the charges be prosecuted by indictment rather than on information in the lower court. ( People v. Litteer, 3 Misc.2d 505.)
The defendant should show either that the case presents intricate and complicated questions of fact or law, that the decision will have a far-reaching effect and may become a precedent, that a property right is affected, or that for some special reason the defendant cannot have a fair trial in the lower court. ( People v. Killorin, 123 N.Y.S.2d 612; People v. Moore, 4 Misc.2d 745.) The mere existence of a property right standing alone is insufficient to warrant the transfer required by the defendant. ( People v. Stein, 236 N.Y.S.2d 703. ) A jury trial is available to the defendant in the District Court and there is no allegation that a fair trial cannot be had. It is therefore ordered that the motion of the defendant is denied.