Judgment, Criminal Division of the Supreme Court, Bronx County (Robert G. Seewald, J.), rendered September 27, 2006, convicting defendant, after a non-jury trial, of harassment in the second degree, and sentencing him to a term of 15 days, reversed, on the law, and the misdemeanor information dismissed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Nardelli, Catterson, Acosta, DeGrasse, JJ.
On September 8, 2004, citing New York State Constitution, article VI, § 28(c) and Section 211(1)(a) of the Judiciary Law as the source of her authority, Chief Judge Kaye promulgated part 42 of the Rules of the Chief Judge (22 NYCRR 42), which authorized the Chief Administrator of the Courts, in consultation and agreement with the Presiding Justice of the First Judicial Department, to establish the Criminal Division of the Supreme Court in Bronx County (BCD) and to provide for the transfer thereto of "some or all cases pending in the Criminal Court of the City of New York in Bronx County in which at least one felony or misdemeanor is charged therein" (22 NYCRR 42.1[b], [c]).
The avowed purpose of part 42 was "to promote the administration of justice in the criminal courts in Bronx County by authorizing deployment of the judges of those courts in a manner that assures that all present and future caseload demands in such county will be met as expeditiously and effectively as possible" (22 NYCRR 42.1[a]).
On September 21, 2004, the Chief Administrative Judge, purporting to act pursuant to "the authority vested in [him] and upon consultation with the Administrative Board of the Courts," promulgated part 142 of the Rules of the Chief Administrator of the Courts (22 NYCRR 142), which established the BCD, to which all pending and future Bronx County criminal cases charging at least one class A misdemeanor or a felony, not resolved at arraignment, would be transferred for further proceedings (22 NYCRR 142.1; 142.2). On September 27, 2004, the Administrative Judge of Bronx County issued an order putting the transfer order into effect as of November 5, 2004. The Bronx Administrative Judge's order purports to have been issued "pursuant to the authority vested . . . by article VI, § 19(a) of the State Constitution and pursuant to direction of the Chief Administrative Judge of the Courts as provided in section 142.2(b). . . and further, upon finding that it will promote the administration of justice in Bronx County for selected components of the criminal caseload of its courts."
These directives effectively merged the New York City Criminal Court in the Bronx with the State Supreme Court in the Bronx, creating a single consolidated criminal trial court for all cases charging at least one class A misdemeanor or a felony.
On October 1, 2005, defendant Edgar Correa's case was transferred to the newly formed BCD. Correa had been charged by information in the Bronx Criminal Court with assault in the third degree (Penal Law § 120.00), menacing in the second degree (Penal Law § 120.14), and criminal possession of a weapon in the fourth degree (Penal Law § 265.01), all class A misdemeanors, and with harassment in the second degree (Penal Law § 240.26), a violation*fn1. Defendant was convicted of harassment in the second degree and this appeal followed. By letter of the Clerk of the Court dated February 22, 2009, this Court asked for additional briefing, in this and two other appeals, on the following issues, which do not have to be preserved for appellate review (see People v Patterson, 39 NY2d 288, 295 ; People v Harper, 37 NY2d 96, 99 ):
(1) whether the establishment of the BCD under part 142 of the Rules of the Chief Administrator of the Courts is consistent with the constitution and statutes of the State of New York; and
(2) whether the Supreme Court possesses jurisdiction over a criminal case absent the filing of an indictment or superior court information as specified in CPL 210.05.
Although part 42, part 142 and the Bronx Administrative Judge's order, which established the BCD and put the transfer order into effect, recite that they are promulgated pursuant to the authority granted by article VI, § 28(c) and § 19(a) of the State Constitution, and Section 211(1)(a) of the Judiciary Law, numerous other provisions of the State Constitution, Judiciary Law and Criminal Procedure Law relating to the structure of the Unified Court System and the authority of the Chief Judge, Chief Administrator and Legislature to regulate the courts must be considered in determining these issues. As discussed below, an analysis of these provisions leads to the conclusion that in transferring all cases charging a class A misdemeanor to the newly created BCD, causing a collapse of the constitutionally created Criminal Court of the City of New York in the Bronx, the Chief Judge and Chief Administrator overstepped the bounds of the administrative and operational authority they possess under the State Constitution, article VI, § 28 and § 19(a), and Judiciary Law § 211 and § 212, and impinged on the Legislature's reserved primary power to alter and regulate jurisdiction, practice and procedure under State Constitution, article VI, § 30.
Consequently, we now hold that the establishment of the BCD by administrative decree, which eviscerates the Bronx Criminal Court by depriving it of its jurisdiction over class A misdemeanors and effectively restructures the constitutionally created Unified Court System, is not justifiable under the State Constitution, the Criminal Procedure Law, the Judiciary Law or any of the statutes or rules governing the administrative powers of the Chief Judge of the State of New York and Chief Administrator of the Courts.
By constitutional amendment, State Constitution, article VI, effective September 1, 1962, vested judicial authority of the State in a unified court system (NY Const, art VI, § 1). Pursuant to article III, § 1, "[t]he legislative power of this state shall be vested in the senate and assembly," which traditionally requires "that the Legislature make the critical policy decisions" (Bourquin v Cuomo, 85 NY2d 781, 784 ).
State Constitution, article VI, § 6(d), continued the Supreme Court, with article VI, § 7(a) providing, in pertinent part, that the Supreme Court "shall have general original jurisdiction in law and equity" and, in the City of New York, "exclusive jurisdiction over crimes prosecuted by indictment, provided however, that the legislature may grant to the city-wide court of criminal jurisdiction of the city of New York jurisdiction over misdemeanors prosecuted by indictment." State Constitution, article VI, § 15(a) directs that the "legislature shall by law establish a single court of . . . city-wide criminal jurisdiction in and for the city of New York."
Section 15(c) provides that the court of city-wide criminal jurisdiction shall have "jurisdiction over crimes and other violations of law, other than those prosecuted by indictment, provided, however, that the legislature may grant to said court jurisdiction over misdemeanors prosecuted by indictment; and over such other actions and proceedings, not within the exclusive jurisdiction of the supreme court, as may be provided by law" (NY Const, art VI, § 15[c]). Section 15(d) provides that the "provisions of this section shall in no way limit or impair the jurisdiction of the supreme court as set forth in section seven of this article" (NY Const, art VI, § 15[d]).
Pursuant to this constitutional mandate, effective September 1, 1962, the former Court of Special Sessions was abolished and the New York City Criminal Court, of which the Bronx Criminal Court is a part, was created.
It is the dissent's position that the authority of the Chief Judge and Chief Administrator to transfer all cases charging a class A misdemeanor from the Bronx Criminal Court to the BCD is expressly provided by article VI, § 28 of the State Constitution and Sections 211(1)(a) and 212 of the Judiciary Law. The dissent contends that this complete transfer power does not run afoul of State Constitution, article VI, § 30, does not require legislative consent, cannot be defeated by statute and is free of the strictures that apply when individual court transfers occur under article VI, § 19 of the State Constitution.
This position cannot withstand scrutiny.
Under the 1962 State constitutional reorganization, the general supervisory powers formerly granted to individual courts passed to the Administrative Board of the Judicial Conference (NY Const, art VI, § 28) (see Matter of Bowne v County of Nassau, 37 NY2d 75, 79 ), composed of the Chief Judge of the Court of Appeals and the Presiding Justice of each of the Appellate Divisions. Effective in 1978, the State Constitution was again amended to vest in the Chief Judge the general supervisory powers formerly exercised by the Administrative Board and to create the position of Chief Administrator of the Courts, to be appointed by the Chief Judge, with the advice and consent of the Administrative Board (NY Const, art VI, § 28[a]).
Under article VI, § 28(c), the Chief Judge, after consultation with the administrative board, is empowered to "establish standards and administrative policies for general application throughout the state, which shall be submitted by the chief judge to the court of appeals, together with the recommendations, if any, of the administrative board. Such standards and administrative policies shall be promulgated after approval by the court of appeals" (NY Const, art VI, § 28[c] [emphasis added])*fn2. Pursuant to Judiciary Law § 211(1), this power includes, but is not limited to, standards and administrative policies relating to, among other things, "(a) the . . . transfer of judges and causes among the courts of the unified court system", and (b) "[t]he adoption . . . and implementation of rules and orders regulating practice and procedure in the courts, subject to the reserved power of the legislature provided for in section thirty of article six of the constitution."
State Constitution, article VI, § 30 provides that: "The legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it has heretofore exercised. The legislature may, on such terms as it shall provide and subject to subsequent modification, delegate, in whole or in part, to a court, including the appellate division of the supreme court, or to the chief administrator of the courts, any power possessed by the legislature to regulate practice and procedure in the courts. The chief administrator of the courts shall exercise any such power delegated to him or her with the advice and consent of the administrative board of the courts. Nothing herein contained shall prevent the adoption of regulations by individual courts consistent with the general practice and procedure as provided by statute or general rules."
Pursuant to State Constitution, article VI, § 28[b], the Chief Administrator, on behalf of the Chief Judge, is empowered to "supervise the administration and operation of the unified court system" on behalf of the Chief Judge. "In the exercise of such responsibility, the chief administrator of the courts shall have such powers and duties as may be delegated to him or her by the chief judge and such additional powers and duties as may be provided by law." Judiciary Law § 212(1)(c) vests the Chief Administrative Judge with the power to fix "terms and parts of court . . . and make necessary rules therefor." Judiciary Law § 212(2) vests the Chief Administrator with authority to "(d) [a]dopt rules and orders regulating practice in the courts as authorized by statute with the advice and consent of the administrative board of the courts, in accordance with the provisions of section thirty of article six of the constitution."
Thus, under State Constitution, article VI, § 28(b), the Chief Administrator's administrative power derives from two sources: (1) authority delegated by the Chief Judge who constitutionally is imbued with plenary authority over matters of administration, and (2) authority conferred by some other provision of law (see Bloom v Crosson, 183 AD2d 341, 345  affd 82 NY2d 768 ). However, the authority of the Chief Administrator with respect to policy formulation "is not broad and unlimited but is subject to being exercised in conformity with standards which have been established in accordance with constitutional prescription" (Matter of Morgenthau v Cooke, 56 NY2d 24, 33 ). It is only with respect to the plenary authority to supervise the administration and operation of the Unified Court System delegated by article VI, § 28, as distinguished from policy ...