People ex rel. Sardo v. Jackson

Appeal from an order of the County Court of Clinton County which dismissed a writ of habeas corpus, after a hearing. Upon an indictment returned to the Supreme Court, Monroe County, charging robbery in the first degree and grand larceny in the first degree, relator was tried in the County Court of Monroe County and on March 24, 1938 convicted on both counts, by verdict of a jury, and sentenced to imprisonment. The basis of the relief sought is relator’s allegations in his petition that no order was issued or signed by a Justice of the Supreme Court transferring the indictment to the County Court. It clearly appears from the minutes of the Supreme Court Term held February 14, 1938 that the indictment was, by order of that court, sent to the County Court for “ trial and further disposal.” Such an order of the court, “ entered in its minutes ” complies with the statute (Code Crim. Pro. § 22, subd. 6) and “the formalism of a signed order by a judge” is not required (People v. Shulenberg, 279 App. Div. 1115). In any event, “any question relating to *939the transfer of the indictment for trial ” should have been called to the attention of the court “ at the first opportunity ” and “ has been waived by failure to assert the claim at the trial.” (People v. Washor, 196 N. Y. 104, 107.) On this appeal, relator contends that at the hearing before the County Court upon the return of the writ, no proper foundation was laid for receipt in evidence of certified copies of the Supreme Court minutes of February 14, 1938 and of a certified copy of the day calendar for that day, the latter also noting the transfer of the indictment. Each exhibit was properly certified and thus properly admitted. Further, as each was offered, relator’s attorney stated that he had no objection to its reception. Order affirmed. Bergan, J. P., Gibson, Herlihy and Reynolds, JJ., concur.