Opinion
September 29, 1916.
Hersey Egginton, Assistant District Attorney [ Harry E. Lewis, District Attorney, with him on the brief], for the motion.
Louis W. Osterweis, opposed.
The district attorney moves to dismiss the appeal on the ground that the order is not appealable. The defendant is charged in a criminal action with a violation of the Liquor Tax Law, a misdemeanor. (See Consol. Laws, chap. 34 [Laws of 1909, chap. 39], § 36, as amd. by Laws of 1910, chap. 485.) An action is pending against him in the Court of Special Sessions of the City of New York. Before the commencement of the trial of the issue raised by his plea of "not guilty," he applied to a county judge of Kings county, the county in which the crime is alleged to have been committed, for a certificate that it is reasonable that the charge should be prosecuted by indictment. (Laws of 1910, chap. 659, § 31, as amd. by Laws of 1911, chap. 576.) The application was denied. The defendant would appeal to this court.
The law cited, pursuant to which the application was made, does not provide for the entry of an order denying the application. It contains no provision for appeal except that a defendant may appeal from a judgment or determination of the Court of Special Sessions in the same manner as an appeal may be taken from a judgment in an action prosecuted by an indictment, and it is prescribed that the jurisdiction of appellate courts shall be the same as from such a judgment of conviction after indictment. (Laws of 1910, chap. 659, § 40.) The application is a proceeding in a criminal action, notwithstanding it must be made to a judicial officer not a member of the court in which the action is pending. (Code Civ. Proc. §§ 3333-3339; Code Crim. Proc. §§ 5-7. See People v. McLaughlin, 150 N.Y. 365, 375.) "This Code applies to criminal actions, and to all other proceedings in criminal cases which are herein provided for." (Code Crim. Proc. § 962.) The Code of Criminal Procedure does not give the defendant in a criminal action, commenced in one of the counties within the city of New York, the right to make the application. ( People v. Knatt, 156 N.Y. 302, 306.) The right is conferred by another statute known as the Inferior Criminal Courts Act of the City of New York (Laws of 1910, chap. 659, § 31, as amd. by Laws of 1911, chap. 576). There is no right of appeal in a criminal case unless it be conferred by statute, and the Code of Criminal Procedure, the controlling statute, does not give the defendant the right to appeal from the denial of his application for the certificate. (Code Crim. Proc. §§ 515, 517; People v. Zerillo, 200 N.Y. 443; People v. Grout, No. 1, 166 App. Div. 220.)
We encounter a decision of this court which holds that an appeal lies to the Appellate Division of the Supreme Court from an order denying an application of the defendant for a certificate. In that case the court entertained the appeal and reversed the order. ( People v. Butts, 121 App. Div. 226.) Prior to the date of that decision, and after the enactment of the Code of Criminal Procedure, direct appeals from intermediate orders in criminal cases were heard and decided. ( People v. Jackson, 114 App. Div. 697; People v. Sarvis, 69 id. 604.) It had been held by the General Term of the Supreme Court in the Third Department that the refusal of the county judge to grant a certificate under section 57 of the Code of Criminal Procedure could not be reviewed on an appeal from the judgment of conviction.
Now it is settled that unless an appeal in a criminal case is authorized by statute it is not authorized at all. ( People v. Zerillo, supra; People v. Grout, No. 1, supra; Matter of Montgomery, 126 App. Div. 72; appeal dismissed, 193 N.Y. 659.)
Recantation is imperative. An intermediate appeal may not be taken, and this appeal must be dismissed.
JENKS, P.J., CARR, MILLS and RICH, JJ., concurred.
Motion granted.