CPL 210.05

A Kings Domestic Violence Lawyer said that, the defendant was charged with, inter alia, harassment in the second degree based on numerous harassing and threatening telephone calls he allegedly made to his former paramour, with whom he had two children. On January 18, 2007, a misdemeanor complaint was filed charging the defendant with, inter alia, aggravated harassment in the second degree (three counts). By order dated January 31, 2007, the action was transferred from the Criminal Court, Kings County, to the IDV Part of the Supreme Court, Kings County. A Kings Criminal Lawyer said that, the misdemeanor complaint was converted to information by the complainant’s attestation dated February 7, 2007. After a nonjury trial, the court convicted the defendant of three counts of attempted aggravated harassment in the second degree.

A Kings Criminal Defense Lawyer said that, 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, as required by CPL 210.05, 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.

The issue in this case is whether CPL 210.05 precludes the Integrated Domestic Violence (hereinafter 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 a superior court information.

As a threshold matter, the 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.

Here, the defendant’s contention that the Supreme Court was not competent to entertain the action in the absence of an indictment or a superior court information as required by CPL 210.05 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 Any attempt by the Legislature to abridge, limit or qualify this broad jurisdiction of the Supreme Court is unconstitutional and void.

In a criminal action, the superior courts, which include the Supreme Court and the County Court, have trial jurisdiction of all offenses in the following manner: “(a) Exclusive trial jurisdiction of felonies; and “(b) Trial jurisdiction of misdemeanors concurrent with that of the local criminal courts; and “(c) Trial jurisdiction of petty offenses,1 but only when such an offense is charged in an indictment which also charges a crime.”

The local criminal courts’ concurrent jurisdiction of misdemeanors is subject to divestiture by the Supreme Court. Specifically, CPL 10.30(2) 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 10.20(2), 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 dated January 6, 2004, an Administrative Order of the Chief Administrative Judge dated January 12, 2004, Part 41 of the Rules of the Chief Judge, and Part 141 of the 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 N.Y. Constitution article VI, §§ 28 and 30, and Judiciary Law § 211. Under N.Y. Constitution article VI, § 30, the Legislature has the power to regulate practice and procedure. Pursuant to that authority, Judiciary Law § 211 provides, in pertinent part, as follows: The chief judge, after consultation with the administrative board, shall establish standards and administrative policies for general application to the unified court system throughout the state, including but not limited to standards and administrative policies relating to: “(a) the dispatch of judicial business, the designation of administrative judges, hours of court, assignment of terms and judges, transfer of judges and causes among the courts of the unified court system, the assignment and reassignment of administrative functions performed by judicial and non-judicial personnel, the need for additional judicial or non-judicial personnel, and the publication of judicial opinions”

Accordingly, Judiciary Law § 211 provides the Chief Judge with constitutional authority to regulate the transfer of cases among the courts.

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.

If you are charged of a crime involving domestic violence and the court has no jurisdiction over the case, seek the representation of a Kings Criminal Defense Attorney and Kings Domestic Violence Attorney at Stephen Bilkis and Associates. Call us.