SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
May 6, 1968
THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,
DONALD J. KUSS AND WALTER MACLYN CONLON, DEFENDANTS
Beldock, P. J., Christ, Brennan, Hopkins and Benjamin, JJ., concur.
In our opinion, the action as to both defendants should be removed from the County Court, Suffolk County, to the Supreme Court, Westchester County.
Motion by defendant Kuss, pursuant to section 344 of the Code of Criminal Procedure, to remove this criminal action from the County Court, Suffolk County, to another county within the State outside the metropolitan New York area. Motion granted to the extent of transferring the action as to both defendants to the Supreme Court, Westchester County. The motion was made solely by defendant Kuss upon notice to defendant Conlon and the District Attorney. On the return date of the motion, defendant Conlon did not appear or file an affidavit either in support of or in opposition to the motion. On the oral argument directed by the court, the District Attorney and counsel for both defendants appeared. After hearing all counsel, the court asked counsel for defendant Conlon for the position taken by that defendant. Counsel stated that his client was taking no position. The court thereupon asked counsel for defendant Conlon whether, if the court should determine that a transfer of the indictment as to both defendants would be indicated in the interests of justice, defendant Conlon would have objection to removal of the action to another county on the ground that a fair and impartial trial could not be had in Suffolk County. Counsel stated that defendant Conlon would have no objection, if the court so directed.
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