267 A.D. 663 | N.Y. App. Div. | 1944
On October 6, 1938, appellant was sentenced by the Schenectady County Court to imprisonment in Elmira
At the hearing on the writ the only proof before the court was the petition. The return was served and filed out of court after the hearing and at about that time the order dismissing the writ was granted. In his return the sheriff relied upon the record of conviction of October 27, 1943, to sustain his custody of appellant. This certificate recites that at the time of his first sentence appellant was placed on probation on certain conditions, but does not name them. It further recites that he “ violated and otherwise failed to comply with the conditions of his probation ”. According to an affidavit of the Assistant District Attorney attached to the return, it was the practice at the time the defendant was placed on probation to direct each defendant so disposed of to immediately report to a probation officer who instructed him as to what his conduct should be and when and where to report. Also a probation card was given such defendant, signed by the County Judge and containing the terms of probation, together with directions as to reporting. Appellant did make some reports to the probation officer. A probation officer’s report is printed in the record on appeal but is not included within the certification of such record. Its source or reason for being included in the record is not disclosed.
The statutory procedure as to probation is clear and orderly. Suspension of execution of a sentence is the same as being placed on probation and a failure to comply with any of the conditions of probation is a violation of such probation. (Code Crim. Pro. § 927.) The court must determine the conditions of probation and notify the .probation officer thereof in writing. (Code Crim. Pro. § 932.) The conditions of probation as thus determined by the court appear to be a portion of the sentence or at least they must be determined by the court and imposed upon the defendant in a manner to give him due notice thereof. A probation officer may not impose conditions of probation except that he may give directions to a defendant as to reporting to him under Code of Criminal Procedure, section 932, subdivi
The record in this case shows that on September 28, 1943, a bench warrant was issued “ for violation of parole ”. On October 27, 1943, the defendant appeared in person and the court advised him that the probation officer had reported that he had violated his probation. The nature of the violation was not disclosed, the petitioner neither admitted nor denied the violation, and there was no formal proof of violation before the court. The court then proceeded to sentence petitioner to a State prison for an indeterminate sentence of not less than five years and not more than ten years. This does not comply with the provisions of the Code of Criminal Procedure. There was no information or other written statement of the alleged violation; there was no arraignment and no proof either by way of admission or otherwise of the violation. The court did not revoke the probation but merely imposed a new and different sentence. This was not a compliance with the Code of Criminal Procedure and the writ of habeas corpus should have been sustained.
The order should be reversed on the law and facts, with twenty-five dollars costs and disbursements, and writ sustained, with twenty-five dollars costs, against the county.
Order dismissing writ of habeas corpus reversed on the law and facts and writ sustained and petitioner- ordered discharged, with twenty-five dollars- costs against the County of Schenectady. [See amended decision, 267 App. Div. 1018.]