People v Resto

[*1] People v Resto 2005 NY Slip Op 50358(U) Decided on March 21, 2005 Supreme Court, Bronx County Dawson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 21, 2005
Supreme Court, Bronx County

The People of the State of New York,

against

Pedro Resto, Defendant.



2001BX009939

Joseph J. Dawson, J.

I am familiar with the recent decisions concerning the transfer, on November 8, 2004, of pending misdemeanor cases from the Criminal Court in Bronx County to the Criminal Division of the Supreme Court in Bronx County. See People v. Gonzalez, 6 Misc 2d 1034(A) (Sup. Ct. Bronx County 2005) (Benitez, J.); People v. Barrow, 2005 WL 94754 (Sup. Ct. Bronx County Jan. 5, 2005) (Barone, J.); People v. Robinson, 2004 WL 2973958 (Sup. Ct. Bronx County Dec. 22, 2004) (Davidowitz, J.); see also People v. Tim S., N.Y.L.J., 2/25/05, p. 20, col. 1 (Sup. Ct. Bronx County 2005) (Lorenzo, J.). I express no opinion concerning the split of authority that has arisen from these decisions.

The precise issue before me is considerably different. It concerns the Supreme Court's power to issue a decision on a motion pursuant to Section 440.10 that arose in the Criminal Court prior to November 8, 2004.[FN1] On November 4, 2004, I began receiving evidence in the Criminal Court during a Section 440.10 hearing in this matter. The hearing was not concluded on that day and, pursuant to authorization that I received from a supervising judge (see Hearing Transcript, November 4, 2004, at p. 39), the matter was adjourned into Supreme Court Part 55, where I currently preside as an Acting Supreme Court Justice. On December 6, 2004, I continued to receive evidence, and both sides rested. The post-hearing submissions were filed on February 4, 2005, and the matter is now ripe for disposition.

Section 19 of Article 6 of the State Constitution states: "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." Plainly, the transfer of this motion promoted the administration of justice. After all, the parties were in the midst of presenting evidence during a hearing before a judge who had become familiar with the issues.[FN2] This is why I sought [*2]permission to take the matter to Supreme Court with me, and it undoubtedly is why authorization was readily granted by the supervising judge.

Nevertheless, Section 19 seems to require that such a transfer be as "provided by law,"[FN3] and I do not believe that any legal authority exists for a transfer in the circumstances of this case. Quite the contrary, the Court of Appeals held more than fifty years ago that it is improper to transfer an application for a writ of error coram nobis to any court other than the one that rendered the challenged conviction. See People v. Wurzler, 300 NY 344, 345 (1950). That principle has not changed since the enactment of the Criminal Procedure Law, which codified the writ in Article 440. See Matter of Pirro v. Cirigliano, 226 AD2d 465, 466 (2nd Dept.), aff'd on opinion below, 88 NY2d 1033 (1996) (prohibiting a Supreme Court Justice from entertaining a Section 440.10 motion challenging a conviction rendered in the County Court); cf. 440.10(1) (relief from a judgment may be obtained in "the court in which it was entered").

Although there has been considerable discussion in the recent opinions by my colleagues about the breadth of the Supreme Court's jurisdiction and the constitutionality of statutes that might be viewed as limiting that power [see Gonzalez, Barrow, and Robinson, supra], there is no need for me to consider those issues. The Legislature was entitled to codify the common-law writ of error coram nobis, and it remains free to regulate and restrict its use. Cf. NY State Const. Art. 6, § 30 ("The legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it has heretofore exercised."); People v. Jackson, 78 NY2d 638, 646-47 (1991) ("Once the Legislature has established a remedy, the terms of the applicable statute control the scope of that remedy."); People v. Bachert, 69 NY2d 593, 598-600 (1987) (enactment of Article 440 did not foreclose use of common-law writ to cover situations where statute is silent); People ex rel. Douglas v. Vincent, 50 NY2d 901, 905 (1980) (Meyer, J., dissenting) (same); Lyons v. Goldstein, 290 NY 19, 25-26 (1943) (common-law writ is available when statutory law does not foreclose its use).

In sum, while I continue to believe that the transfer of this motion promoted the administration of justice [see NY Const. Art. 6, § 19], I cannot retain this case in Supreme Court without intruding upon the legislative prerogative to regulate the use of Section 440.10. Cf. People v. Ramos, 85 NY2d 678, 687-88 (1995) (while the Constitution authorizes "broad judicial rule-making authority," court rules must be consistent with the general practices and procedures set forth in statutes and cannot "enlarge or abridge" statutory rights). Hence, I have no choice but to return this matter to the Criminal Court. In light of the history of this case, it may very well be appropriate for me to return to Criminal Court as well so that I can render a decision in this [*3]matter. See generally Judiciary Law § 211. While I am not empowered to make that decision sua sponte, I will notify the Administrative Judge of the situation.

This matter is returned forthwith to the Criminal Court of the City of New York, Bronx County, for a decision on defendant's motion for relief pursuant to Section 440.10 of the Criminal Procedure Law.

The foregoing constitutes the Decision and Order of the Court.

Dated:Bronx, New York

March 21, 2005

_________________________________________

Joseph J. Dawson

Acting Supreme Court Justice Footnotes

Footnote 1: Neither party has addressed this issue in their papers. Nevertheless, I warned both sides that, if this matter were not concluded before November 5, 2004, certain jurisdictional obstacles might arise.

Footnote 2: I was assigned to handle this motion in October 2004, after the Appellate Term had reversed a decision by one of my colleagues (who now sits in another county), and remanded the matter "for a hearing and decision de novo." See People v. Resto, 2 Misc 3d 130 (2004). I had already become familiar with some of the issues in the underlying case at a much earlier point, however, having reviewed the minutes of a suppression hearing conducted before a Judicial Hearing Officer and having ordered an independent source hearing in 2001.

Footnote 3: The decisions in People v. Levandowski, 190 Misc 2d 738 (Sup. Ct. Rensselaer County 2002), and People v. Turza, 193 Misc 2d 432 (Sup. Ct. Suffolk County 2002), suggest that the power set forth in Section 19 can be exercised without any enabling legislation whatsoever. I need not reach that issue in light of the precedents that govern the outcome here. See infra.