Opinion
April 8, 1985
Appeal from the Supreme Court, Dutchess County (Dachenhausen, J.).
Judgment affirmed, without costs or disbursements.
Petitioner is incarcerated at Green Haven Correctional Facility pursuant to a judgment of the Supreme Court, New York County (Goodman, J.), rendered September 21, 1979, which convicted him of murder in the second degree and criminal possession of a weapon in the third degree and imposed sentence. The judgment was affirmed on appeal ( People v. Devine, 89 A.D.2d 825) and an application for leave to appeal was denied ( People v. Devine, 58 N.Y.2d 691).
Thereafter, petitioner commenced this habeas corpus proceeding to obtain his release. He contends that the Supreme Court, New York County, lacked jurisdiction to render the judgment of conviction because the Justice presiding at his trial in 1979 was a Judge of the Civil Court of the City of New York who had been temporarily designated an Acting Supreme Court Justice in violation of N.Y. Constitution, article VI, § 26 (i).
Assuming, arguendo, that the temporary assignment was in violation of the State Constitution under the rationale of Matter of Morgenthau v. Cooke ( 56 N.Y.2d 24), the Judge of the Civil Court who presided at petitioner's trial was serving as a de facto Supreme Court Justice ( see, Matter of Morgenthau v Cooke, supra; People v. Czajka, 11 N.Y.2d 253; Sylvia Lake Co. v Northern Ore Co., 242 N.Y. 144, cert denied 273 U.S. 695; Curtin v. Barton, 139 N.Y. 505). Under a long and unbroken line of authority, the official acts of a de facto judge are valid and binding on the public and interested third persons, including petitioner, and the issue of the propriety of that judge's appointment cannot be raised collaterally ( Matter of Morgenthau v. Cooke, supra, p 37; People v. Czajka, supra, p 255; Sylvia Lake Co. v. Northern Ore Co., supra, pp 147-148; Curtin v Barton, supra, pp 511-512; People ex rel. Sinkler v. Terry, 108 N.Y. 1, 13-14; Morris v. Cahill, 96 A.D.2d 88, 93; People v Pokoik, 83 Misc.2d 669, 670; Matter of Delehanty [ Sullivan], 202 Misc. 33, 36, affd 280 App. Div. 542, affd 304 N.Y. 725; People v. Baltusnik, 165 Misc. 173, 174; cf. Matter of Cullum v O'Mara, 43 A.D.2d 140, 144-145, affd 33 N.Y.2d 357). Consequently, petitioner cannot, by way of a habeas corpus proceeding, collaterally attack the method by which the Trial Judge was appointed in order to vitiate his judgment of conviction. Titone, J.P., Bracken, Rubin and Lawrence, JJ., concur.