People ex rel. Fairley v. Zelker

In a habeas corpus proceeding, the appeal is from a judgment of the Supreme Court, Dutchess County, dated February 22, which sustained the writ and remanded relator to the Albany County Sheriff. Judgment reversed, on the law, without costs, writ dismissed and relator remanded to the custody of the Superintendent of Green Haven Correctional Facility. Relator was indicted in the Supreme Court, Albany County, for the crime of robbery in the first degree. The ease was transferred to the County Court, Albany County, for trial, pursuant to subdivision 6 of section 22 of the Code of Criminal Procedure, as was the standard practice in that county, and on December 6, 1967, in the County Court, relator was convicted of the crime as charged and was sentenced to a prison term of from 10 to 20 years. The conviction was affirmed by the Appellate Division, the Third Department (People v. Fairley, 32 A D 2d 976); leave to appeal to the Court of Appeals was denied on April 13, 1970 and certiorari was also denied (Fairley v. New York, 400 U. S. 879). The only claim made by relator is that an order was never made transferring his ease to the County Court for trial and determination and that, therefore, that court was without jurisdiction to proceed. This is the first time this claim was made. Relator made no objection at his trial and submitted to the County Court’s jurisdiction without complaint. Even if failure to raise this claim at the earliest possible opportunity not be deemed to be a waiver of the claim (but see People v. Washor, 196 N. Y. 104; People ex rel. Sardo v. Jackson, 6 A D 2d 938), the presumption of regularity attendant upon the transfer has not been rebutted. We may properly infer that an order of transfer was entered at the time the transfer took place. Insofar as People ex rel. Dold v. Martin (284 App. Div. 127) be deemed to hold to the contrary, we decline to follow it. Munder, Acting P. J., Martuseello, Latham, Shapiro and Gulotta, JJ., concur.