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he defendant was charged with harassment based on numerous harassing and threatening telephone calls

The defendant was charged with harassment based on numerous harassing and threatening telephone calls he allegedly made to his former paramour, with whom he had two children. Specifically, a misdemeanor complaint was filed charging the defendant with harassment and aggravated harassment. By order, the action was transferred from the County Criminal Court to the Integrated Domestic Violence (IDV) Part of the County Supreme Court. The misdemeanor complaint was converted to information by the complainant’s attestation. After a nonjury trial, the court convicted the defendant of three counts of attempted aggravated harassment.
The defendant argues for the first time on appeal that the IDV Part of the Supreme Court, to which his case was transferred from the Criminal Court, lacked jurisdiction over the instant matter because neither a grand jury indictment nor a superior court information was filed by a district attorney and he never waived his right to an indictment by a grand jury. Moreover, the defendant contends that there was no legislative mandate authorizing the transfer.

As a threshold matter, the County Court agrees with the defendant that his contention regarding the jurisdiction of the IDV Part may properly be raised for the first time on appeal. The preservation rule does not apply to errors that affect the organization of the court or the mode of proceedings prescribed by law. Such errors fall into a very narrow category of cases. The Court of Appeals has held that, in general, errors that fall under the exception exist where the court had no jurisdiction, or where the right to trial by jury was disregarded, or where there was a fundamental, non-waivable defect in the mode of procedure. The exception to the general rule was created to ensure that criminal trials are conducted in accordance with the mode of procedure mandated by Constitution and statute. However, the exception only applies to errors that go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted.

The defendant’s contention that the Supreme Court was not competent to entertain the action in the absence of an indictment or Superior Court information raises the issue of the court’s jurisdiction and, thus, preservation was not required.

The Supreme Court has general original jurisdiction in law and equity and is competent to entertain all causes of action unless its jurisdiction has been specifically proscribed. Any attempt by the Legislature to abridge, limit or qualify this broad jurisdiction of the Supreme Court is unconstitutional and void.

The local criminal courts’ concurrent jurisdiction of misdemeanors is subject to divestiture by the Supreme Court. Specifically, Criminal Procedure Law (CPL) provides that local criminal courts have preliminary jurisdiction of all offenses subject to divestiture thereof in any particular case by the superior courts and their grand juries. Pursuant to CPL, the Supreme Court has preliminary jurisdiction of all offenses but exercises such jurisdiction only by reason of and through the agency of grand juries.

The IDV Parts were created pursuant to an Administrative Order of the Chief Judge, an Administrative Order of the Chief Administrative Judge, and Rules of the Chief Administrator of the Courts. The rules provide for the transfer to IDV Parts of the Supreme Court of any case pending in another court in the same county. Authority for the transfer of misdemeanor cases to the IDV Parts of the Supreme Court is found under NY Constitution and Judiciary Law. Under NY Constitution, the Chief Judge may establish standards and administrative policies for general application throughout the state. Under NY Constitution, the Legislature has the power to regulate practice and procedure.

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 is not self-executing. In any event, Judiciary Law 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. Stated differently, Judiciary Law satisfies the as may be provided by law requirement of NY Constitution. 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.

CPL provides that the only methods of prosecuting an offense in a superior court are by an indictment filed therewith by a grand jury or by Superior Court information filed therewith by a district attorney. The issue of whether CPL deprives the Supreme Court of trial jurisdiction over a misdemeanor case has yet to be addressed by the County Court. Neither robbery or burglary is involved.

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, 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. 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, 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, 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, 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.

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. 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, at this nonjury trial, the court did not consider the allegation of an uncharged crime. Accordingly, the judgment is affirmed.

Regardless of where a case is tried, the fact that a person committed an unlawful act against someone still remains. If you are looking for a Kings County Domestic Violence Lawyer or a Kings County Criminal Defense Attorney, call or visit Stephen Bilkis and Associates. You can also approach the Kings County Family Attorney if you are in need of one.

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