People v. Blakeslee

Bxtrke, J. Appellant was convicted of the crime of bookmaking (Penal Law, § 986) upon a Jury’s verdict of guilty in the Recorder’s Court of the City of Johnstown sitting as a Court of Special Sessions (Code Crim. Pro., § 63). An appeal was taken to the County Court of Pulton County pursuant to section 520 of the Code of Criminal Procedure (now § 517, as amd. by L. 1954, ch. 806). The County Judge disqualified himself because of prior civil litigation between himself and the defendant, and transferred the appeal to the Supreme Court, Fulton County, pursuant to section 44 of the Code of Criminal Procedure. The Supreme Court affirmed the conviction and an appeal to this court was allowed by the Chief Judge of the Court of Appeals. (Code Crim. Pro., § 520.) [292] Among other assignments of error, appellant contended that the evidence, consisting of some forty-four telephone conversations intercepted and transcribed pursuant to a wire-tap order granted by a justice of the Supreme Court, was insufficient to sustain the verdict. The nature and contents of the conversations, properly identified by competent witnesses, were sufficient to sustain a verdict of guilty beyond a reasonable doubt. In the Court of Appeals, appellant contended that the affirmance of the conviction by the Supreme Court was void since only an appeal to the County Court is authorized by statute. (Code Crim. Pro., § 520, now § 517). This contention is without merit since section 44 of the Code of Criminal Procedure authorizes the County Court to transfer “ any criminal action or proceeding ” to the Supreme Court if the County Judge is for any reason incapable of acting in the cause. The phrase “ having-jurisdiction of such an action or proceeding ” does not limit the application of the section insofar as the Supreme Court is concerned since the latter court is invested with State-wide jurisdiction. The phrase was originally a territorial limitation on the old city courts and was retained in the section by oversight when the phrase “ or to a city court ” was deleted from the section by chapter 255 of the Laws of 1941. People v. Wurzler (300 N. Y. 344) is not applicable. There the County Court, in which the appellant had been convicted, transferred a coram nobis proceeding to the Supreme Court because of the disqualification of the County Judge. This court, in reversing and remanding the matter to the County Court, held that “ it is only the court where a defendant is tried and convicted that possesses the power to hear and decide a motion in the nature of a writ of error coram nobis.” No such limitation exists as to appeals since the Legislature, subject to constitutional limitations, has broad power to confer appellate jurisdiction. The judgment should be affirmed. Conway, Ch. J., Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ., concur. Judgment affirmed.