Opinion
May 3, 1971
In a proceeding pursuant to CPLR article 78 to prohibit appellant from conducting a trial in a certain criminal action against one Alfred Baio on the ground that the Town Justice Court of the Town of Cortlandt has been divested of jurisdiction, the appeal is from a judgment of the Supreme Court, Westchester County, dated December 8, 1969, which granted the application. Judgment reversed, on the law and the facts, without costs, and petition dismissed on the merits. On January 25, 1969 appellant was presented with an information charging Baio with intentionally pointing a firearm at the complainant, which conduct is a class A misdemeanor, under section 265.35 (subd. 4, par. [b]) of the Penal Law. Process was served, petitioner Smyth was assigned as counsel for Baio, and on March 3, 1969 petitioner and Baio appeared before appellant and demanded a jury trial. The matter was set down for trial on May 20, 1969 at 8:00 P.M. On May 19, the day before the scheduled trial, the Clerk of the Town Justice Court advised petitioner by telephone that the matter had been adjourned, purportedly because the jury panel had not been sent proper notices. Nevertheless, petitioner and Baio appeared at the Town Justice Court on the 20th and, after waiting some time and finding that no one else had appeared, left the courthouse. On the next day, the 21st, petitioner received an unsigned copy of a letter dated May 19, from the Town Justice addressed to the complainant, advising that the case had been adjourned until June 10. The sole question is whether the adjournment caused the Town Justice Court to lose jurisdiction. We think not. Appellant had jurisdiction of Baio and of the offense and obviously therefore had power to adjourn the case ( Matter of Hogg v. Parker, 20 A.D.2d 611, affd. 14 N.Y.2d 728). Here, appellant adjourned the case when advised that the proper jury notices had not been sent. In our opinion, this was an adequate reason for appellant to act and in no way constituted an abuse of discretion (see UJCA, § 1302, subd. [a]; see, also, Code Crim. Pro., § 702-a). Nor can it be argued seriously that because notice of the adjournment was given by the clerk of the court rather than by appellant himself the adjournment was an act of the former and not the latter (see Matter of Lampman v. Rickman, 41 Misc.2d 711). Munder, Acting P.J., Martuscello, Shapiro, Gulotta and Benjamin, JJ., concur.