People v. Ferri 170 A.D. 944

Per Curiam:

Under the Code of Criminal Procedure, section 808, the allowance to counsel assigned to defend one arraigned charged with a *945capital offense is to be on the certificate of the judge or justice “ presiding at the trial or otherwise disposing of the indictment.” In this case the justice who took the plea of guilty of murder in the second degree, which he afterwards let the defendant withdraw, did not dispose of the indictment, but left it to be tried on the substituted plea of not guilty. Doubtless the court in which the action was finally disposed of can make an allowance to duly assigned counsel for services in defense, even if only partial, and followed by substitution of other counsel, if the aggregate allowance does not exceed $500. But here the justice, who did not dispose of the indictment, rightly denied appellant's application for allowance for want of power. The order is, therefore, affirmed, but without costs. Jenks, P. J., Carr, Stapleton, Mills and Putnam, JJ., concurred. Order affirmed, without costs.