
    The People of the State of New York, Plaintiff, v. Fitzgerald Devonish, Defendant.
    Supreme Court, Special Term, New York County,
    May 16, 1960.
    
      Chance, Mitchell & Wells (Nathan H. Mitchell of counsel), for defendant. Frank 8. Hogan, District Attorney (Laivrence K. Feitell of counsel), for plaintiff.
   Samuel M. Gold, J.

This is a motion by a defendant, charged with violation of section 974 of the Penal Law, for an order certifying that the action presently pending in the Court of Special Sessions, New York County, be prosecuted by indictment in the Court of General Sessions, New York County.

Defendant was originally arraigned in the Gamblers Part of the Magistrates ’ Court. He could have been tried in that court, but chose to go to trial in the Court of Special Sessions. His present motion is based upon his claim that the 1 ‘ get tough policy ” of the Court of Special Sessions makes it impossible for him to get a fair trial in that court. He also contends that the fact that no Negroes are Justices of the Court of Special Sessions will prevent him, a Negro, from obtaining a fair and impartial trial in that court.

No showing is made that the stricter policy of the Court of Special Sessions, in relation to the prosecution of gamblers, includes the conviction of innocent men or any unfairness to defendants or partiality toward the prosecution. It may be that sentences of those convicted are more severe than formerly. Defendant, however, has no vested right to the continuation of lenient sentences. Nor has defendant a right to have his trial transferred to a less severe court. Defendant’s claim that he cannot get a fair and impartial trial in the Court of Special Sessions, because that court has no negro Justice, is not shown to have any merit. No claim is made that any Justice of that court has in any way demonstrated anti-Negro sentiment or prejudice. No claim is made that Negroes have not been accorded the same treatment as whites in that court. If defendant’s contention were to prevail, similar claims by persons of other colors, races and nationalities could also be successfully asserted. The result would be complete disruption of our court system.

The situation in which defendant finds himself, as previously observed, is one of his own choosing. Had he gone to trial in the Magistrates’ Court, the grounds upon which he now objects to trial in Special Sessions would not have existed. Motion denied.  