THE PEOPLE OF THE STATE OF NEW YORK ex rel. EMANUEL DOLD, Appellant,
WALTER B. MARTIN, as Warden of Attica State Prison, Respondent.
APPEAL from an order of the County Court of Wyoming County (CONABLE, J.), entered November 6, 1953, which dismissed a writ of habeas corpus and remanded relator to the custody of the Warden of Attica State Prison.
John F. Dwyer, District Attorney (Robert A. Burrell of counsel), for respondent.
Emanuel Dold, appellant in person.
The County Court of Wyoming County dismissed a writ of habeas corpus. The relator appeals to this court. Briefly stated, it is appellant's contention that the County Court of Erie County had no jurisdiction to take his plea and pronounce judgment upon him. The record before us shows that the appellant was indicted by a Grand Jury at the April, 1951, Criminal Term of the Supreme Court in the County of Erie for the crime of burglary, third degree, attempted grand larceny in the first degree and violation of section 408 of the Penal Law. He was duly arraigned in the Supreme Court on April 27, 1951, at which time the court granted the District Attorney's motion to amend the indictment. Thereafter, the defendant-appellant was advised of his right to counsel and counsel being present, he entered a plea of not guilty. There the matter rested so far as any further proceedings in the Supreme Court. The record next discloses proceedings in the County Court of Erie County on May 11, 1951. At that time it appears that defendant was before the County Court in person and by attorney. He was advised of his right to counsel. He then withdrew his former plea of not guilty and pleaded guilty to attempted grand larceny. On June 1, 1951, in Erie County Court, the third count of the indictment was dismissed upon motion of the District Attorney and defendant-appellant was sentenced to Attica State Prison for a term of five to ten years. The record discloses no order of the Supreme Court, in which the indictment was found, in conformity with section 22 (subd. 6) of the Code of Criminal Procedure. It is conceded that no such order was entered in the
minutes of the Supreme Court. The record is devoid of any notation by a court clerk or any other official upon the indictment or other record which in any way indicates that such order was in fact made. Moreover, it appears that, at the habeas corpus hearing, no testimony was taken. The memorandum of the Wyoming County Judge which concededly states the correct facts recites: 'The record, as presented to this court, is completely silent as to any transfer or lack of transfer of the indictment from the Supreme Court to County Court. No notation has been presented to the court by either the relator or the respondent showing that such a transfer either was or was not made.'
Upon the return of the writ in Wyoming County Court, the respondent, Warden of Attica State Prison, was represented by the Attorney-General's office. Upon this appeal, the District Attorney of Erie County, by his assistant, appeared and submitted a brief in behalf of the respondent, evidently at the instance of the Attorney-General. The proceeding being of a civil nature, the assistant district attorney was in some doubt as to his standing in court to represent the respondent, Warden of Attica State Prison. Under the circumstances, this court heard his argument and accepted his brief. Although the brief touches upon other points, the assistant district attorney, upon the argument, stated that he was relying solely upon the presumption of regularity and we think that is the only question presented for our determination. The respondent relies upon the cases of People v. Bradner (107 N.Y. 1); People ex rel. Albanese v. Hunt (266 A.D. 105, affd. 292 N.Y. 528) and People ex rel. Peachin v. Foster (186 Misc. 366, affd. 271 A.D. 809). We are of the opinion that the decisions in those cases do not sustain the respondent's position. We think that upon the record which was before the County Judge on the return of the writ and which is before us, the County Court of Erie County at no time acquired jurisdiction of this indictment and was without power to proceed upon it; that all proceedings had before the said County Court are a nullity.
It has never been doubted that in a court of record there is a presumption, in the absence of proof to the contrary, that its proceedings are regular and in accordance with the rules of law. That, however, is not what is here presented. The question is not merely one of regularity of proceedings but one of essential jurisdiction. The proceedings in the County Court so far as observing the constitutional and statutory rights of the defendant is concerned, are not in question. The County Court
may have proceeded with the utmost regularity in those respects but if it had no jurisdiction to proceed at all, its acts and determination and judgment are void and a nullity. (See 7 R. C. L., Court, § 59.) Likewise, there may be no waiver of jurisdiction in a court of limited and statutory jurisdiction insofar as the subject matter is concerned. (22 C. J. S., Criminal Law, § 161, p. 257, and authorities there collated.)
The County Court is strictly a court of limited statutory jurisdiction. The Legislature may enlarge or restrict its jurisdiction within the limitations provided in article 6 (§ 11) of the Constitution of the State. As to criminal matters, the jurisdiction of the County Court is set forth in section 39 of the Code of Criminal Procedure. Subdivision 2 of section 39 confers upon County Courts jurisdiction 'To try and determine indictments found therein or sent thereto by the Supreme Court'. Section 22 (subd. 6) of the Code of Criminal Procedure gives authority to the Supreme Court to send a Supreme Court indictment to County Court 'by an order, entered in its minutes'. Unless and until, therefore, such an order is made the County Court acquires no jurisdiction of an indictment found in Supreme Court. We have been cited to no case where the whole record is before the court and which record is silent as to an order of transfer, which holds that there is any presumption that such order was made. In each of the three cases above referred to, the record contained some notation or evidence that the order was in fact made. It was held by this court in the Albanese case (supra) that the entry of the order in the minutes was a ministerial act and failure of such entry did not vitiate the transfer of the indictment if there was such order. In that case there was a notation on the indictment by the deputy county clerk that the indictment was transferred to County Court. It was held that such notation was sufficient to show that an order of transfer was made. In the Peachin case (supra, p. 368) there was testimony of a Justice of the Supreme Court as to the practice to remit indictments and there also was a record in the District Attorney's office ...