
    The People of the State of New York, Plaintiff, v. Philip H. Roberts, Defendant.
    (County Court, Columbia County,
    June, 1915.)
    Grand jury — jurisdiction of — indictment for assault in third degree.
    A grand jury, in the first instance, is without jurisdiction to • indict a defendant for the crime of assault in the third degree.
    Motion to dismiss indictment on the ground that the grand jury finding the indictment had no jurisdiction of the offense charged.
    Duntz & Herzberg, for motion.
    John C. Tracy, district attorney, opposed.
   McNamee, J.

The defendant was indicted at the February, 1915, term of the Supreme Court for the crime of assault in the third degree. The charge upon which the indictment was found was not presented to a Court of Special Sessions, and was lodged in the first instance with the grand jury which found the indictment. The certificate referred to in section 57 of the Criminal Code was not filed, and could not be filed, because there was no proceeding instituted in a Court of Special Sessions.

The power of the Supreme Court and of the County Court to inquire by the intervention of a grand jury into crimes committed or triable in the county is contained in sections 22 and 39 of the Criminal Code; and those sections exclude from such inquiry by those courts, in the first instance, the minor offenses of which Courts of Special Sessions have exclusive jurisdiction to hear and determine. No case has come to the attention of the court which is authority for a grand jury, in the first instance, finding an indictment for assault in the third degree, or other offenses which Courts of Special Sessions have exclusive jurisdiction to hear and determine. An examination of sections 56 and 57 and sections 22 and 39 of the Criminal Code leads to the conclusion that a grand jury has no such power in the first instance and in the absence of the certificate referred to in section 57. While section 252 of the Criminal Code gives to grand juries the power to inquire into all crimes committed or triable in the county, and to present them to the court, there is no statute which authorizes a grand jury in express terms to indict for the class of crimes enumerated in section 56 of the Criminal Code. The views here expressed seem to be in close accord with those taken by the Court of Appeals and the Appellate Division of the Third Department, and at Trial Term. People v. Knapp, 156 N. Y. 302; People v. Vert, 134 App. Div. 790; People v. Gardner, 78 Misc. Rep. 514. It follows, therefore, that the grand jury sitting in connection with the Supreme Court which found the indictment against the defendant for the crime of assault in the third degree was without jurisdiction to do so. The indictment should be dismissed and the sureties on the bail bond of the defendant released.

Motion granted.  