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CPL 210.05…. cont.

Furthermore, N.Y. Constitution article VI, § 19 gives the Supreme Court the authority to transfer cases to itself. Section 19 provides, in relevant part “as may be provided by law, the supreme court may transfer to itself any action or proceeding originated or pending in another court within the judicial department other than the court of claims upon a finding that such a transfer will promote the administration of justice”

Generally, constitutional provisions are presumptively self-executing. However, this Court has held that, in view of the phrase “as may be provided by law, the power of removal conferred by article VI, § 19(a) is not self-executing. In any event, as the People correctly contend, Judiciary Law § 211, as implemented by the rules promulgated by the Chief Judge and the Chief Administrative Judge pursuant to authority derived from the New York State Constitution, provides statutory authority for the transfer of misdemeanor cases to IDV Parts pursuant to article VI, § 19. Stated differently, we hold that Judiciary Law § 211 satisfies the “[a]s may be provided by law” requirement of N.Y. Constitution article VI, § 19(a). Therefore, there is no merit to the defendant’s contention that a lack of legislative authority forecloses the Supreme Court’s exercise of its removal power under that constitutional provision.

However, notwithstanding the Supreme Court’s jurisdiction over both felonies and misdemeanors, the New York State Legislature enacted CPL 210.05, entitled “Indictment and superior court information exclusive methods of prosecution.” CPL 210.05 provides that “[t]he only methods of prosecuting an offense in a superior court are by an indictment filed therewith by a grand jury or by a superior court information filed therewith by a district attorney”.
The issue of whether CPL 210.05 deprives the Supreme Court of trial jurisdiction over a misdemeanor case has yet to be addressed by this Court.

In the instant criminal case, the defendant argues that the transfer of his misdemeanor case to the Supreme Court violated CPL 210.05 because the Supreme Court did not acquire jurisdiction over the action by indictment or superior court information. The defendant argues that CPL 210.05 and the other sections referenced by the defendant limit the jurisdiction of the Supreme Court to the extent that they preclude the Supreme Court from presiding over preliminary aspects of felonies and all aspects of misdemeanors other than when returned by indictment. CPL 210.05 is procedural in nature. Indeed, we note that, since the creation of the IDV Part in 2004, the Legislature has not sought to undo the creation of that Part. Moreover, it has been held that CPL 210.05 was only intended to “circumscribe a prosecutor’s ability to invoke a superior court’s jurisdiction” and that the statute “cannot be read as a limitation on Supreme Court’s historical and constitutional power to preside over misdemeanor cases”. We find that CPL 210.05 merely prescribes the method and manner required for a prosecutor to prosecute an offense in a superior court, rather than imposing a limitation on the superior court’s constitutional jurisdiction over such a case. In any event, we hold that CPL 210.05 was not intended to prohibit the Supreme Court from exercising its jurisdiction under the New York State Constitution, nor can it.

Based on the foregoing, we hold that, contrary to the defendant’s contention, CPL 210.05 does not preclude the IDV Part of the Supreme Court from exercising its jurisdiction under the New York State Constitution to try misdemeanor charges against a defendant in the absence of an indictment or superior court information. Once the defendant’s case was transferred to the IDV Part pursuant to Judiciary Law § 211, as implemented by the rules promulgated by the Chief Judge and the Chief Administrative Judge pursuant to authority derived from the New York State Constitution, his case was properly handled pursuant to the appropriate substantive and procedural rules of that court. Thus, a reversal of the judgment of conviction and dismissal of the charges on that ground is not warranted.

We note that the Court of Appeals is poised to determine whether it is improper for the Supreme Court to transfer non-indicted misdemeanors from the Criminal Court to itself. In light of the conflict between our holding and the First Department’s holding in People v. Correa, the issue presented here may be ripe for review by the Court of Appeals.

A secondary issue raised by the defendant is whether the Supreme Court erred in not declaring a mistrial when the prosecutor elicited from the complainant an allegation that the defendant committed an uncharged crime. The defendant’s contention is unpreserved for appellate review as defense counsel failed to move for a mistrial after the court sustained his objection. In any event, we presume that, at this nonjury trial, the court did not consider the allegation of an uncharged crimes.

Accordingly, the court held that the judgment is affirmed.

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