People ex rel. Barrett v. Hunt

257 A.D. 919 | N.Y. App. Div. | 1939

— Order affirmed, without costs. Memorandum: Section 1943 of the Penal Law provides that in the case of the resentence of a prisoner the court “ shall vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated.” A judgment rendered by a court in a criminal case must conform strictly to the statute. (People ex rel. Friedman v. Hayes, 172 App. Div. 442, 445.) The judgment of February 14, 1936, that the relator be imprisoned in Auburn Prison for the term of eleven years and six months did not comply with the above provision of the Penal Law in that it did not revoke the life sentence imposed on relator on March 23, 1928, or indicate that the sentencing judge deducted from the new sentence all the time actually served by the relator on the sentence supposed'to have been vacated. The petition and return contain allegations to the effect that the sentence of March 23, 1928, was vacated. If we assume those allegations to be sufficient to show that the previous sentence was vacated, the sentence of February 14, 1936, was void, nevertheless, for the reason that the sentencing court did not deduct from that sentence all the time actually served on the vacated sentence. Failure to vacate a previous sentence renders a resentence void. (People v. Voelker, 222 App. Div. 717.) The judgment of April 17,1936, that the relator be confined in Auburn Prison for the term of sixteen years and seven months recites that the sentences of March 23,1928, and February 14, 1936, were vacated and that all the time actually served under these sentences was deducted from the new sentence as required by section 1943 of the Penal Law. Hence, this was and is a valid sentence. All concur. (The order dismisses a writ of habeas corpus and remands relator into custody.) Present — Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ.