Lumbard, Chief Judge, Feinberg, Circuit Judge, and Timbers, District Judge.*fn*
Petitioners Robert Herrington and Michael Marshall, appealing from orders dismissing their habeas corpus petitions, claim that their criminal convictions in the New York Supreme Court for Monroe County were obtained in violation of due process, on the ground that under New York law, Family Court Act § 812, exclusive original jurisdiction over the intra-family "assaults" with which they were charged rested in the Family Court, and not in the Supreme Court.
We hold that petitioners have failed to establish that under New York law the Supreme Court lacked jurisdiction over their cases. Therefore we do not reach their novel due process argument: that federal habeas corpus relief is available to a defendant convicted in a state court which lacked jurisdiction of the subject matter solely because of the provisions of state law.
Petitioner Herrington was tried in New York Supreme Court, Monroe County, under an indictment charging him with the first degree murder of his mother-in-law, and with attempted first degree murder of his wife. Both incidents occurred on December 11, 1962, the evidence at trial indicating that petitioner had killed his mother-in-law and wounded his wife with a shotgun. The jury returned its verdict on July 3, 1963, finding Herrington guilty of first degree manslaughter and second degree assault. Sentences of 15 to 30 years and 7 1/2 to 15 years, to run concurrently, were imposed July 25, 1963. The Appellate Division affirmed the conviction without opinion, People v. Herrington, 23 A.D.2d 524, 255 N.Y.S.2d 824 (4th Dept.1965).
Subsequently, in a coram nobis proceeding, petitioner raised for the first time the jurisdictional issue he relies on in his present petition. Relief was denied by Judge Rosenthal on June 2, 1967. The Appellate Division affirmed without opinion, leave to appeal was denied, and finally the Supreme Court denied certiorari. 390 U.S. 1045, 88 S. Ct. 1646, 20 L. Ed. 2d 307 (1968). Herrington's application for a writ of habeas corpus was denied by Judge Burke, in the Western District of New York, on August 7, 1968.
Petitioner Marshall was convicted on March 30, 1967, in New York Supreme Court, Monroe County, of the crimes of sodomy and incest committed against his daughter. He is serving concurrent terms of 10 to 20 years, and 5 to 10 years for these crimes. Marshall's habeas corpus petition, raising a jurisdictional claim similar to that presented by Herrington's petition, was dismissed by Judge Curtin in the Western District of New York on June 4, 1968, for the reason that petitioner then had pending in the state courts an appeal from his conviction. The conviction subsequently was affirmed unanimously, without opinion, by the Appellate Divison, People v. Herring, 30 A.D.2d 1050, 295 N.Y.S.2d 426 (4th Dept.1968), and the Court of Appeals denied leave to appeal.
We affirm the denial of the petitions of Herrington and Marshall, as we conclude that petitioners have not established that under the New York law their cases were not properly tried in the Supreme Court.
Both petitioners claim that the Supreme Court of New York had no subject matter jurisdiction over the acts alleged in the indictments returned against them, and that exclusive original jurisdiction lay rather in the Family Court. They seek federal habeas corpus relief to void their convictions on the ground that this lack of jurisdiction under provisions of state law violated due process.
In 1962 the State of New York amended its Constitution to create a Family Court, which was to have jurisdiction "as may be provided by law," over "crimes and offenses by or against minors or between spouses or between parent and child or between members of the same family or household." N.Y.Const. art. VI, § 13(b). Legislation implementing this constitutional amendment was passed by the Legislature in 1963 in the form of the Family Court Act. N.Y.Jud. -- Court Acts, Pt. 1, Family Court Act § 1 et seq. (McKinney 1963).
The key provision of the Act for present purposes is § 812:
"The family court has exclusive original jurisdiction over any proceeding concerning acts which would constitute disorderly conduct or an assault between spouses or between parent and child or between members of the same family or household."
If a criminal complaint charging any of the acts within the compass of § 812 is lodged in any court other than the Family Court, that court must transfer the complaint to the Family Court under § 813. However, the Family Court in turn may transfer any proceeding within its jurisdiction under § 812 to an appropriate criminal court if it finds "that the processes of the family court are inappropriate." Family Court Act § 814(a). After such a transfer by the Family Court the usual New York substantive and procedural law ...