People ex rel. Bergman v. Morhous

264 A.D. 978 | N.Y. App. Div. | 1942

Appeal from an order of the Washington County Judge who dismissed a writ of habeas corpus after a hearing before a Special Term of the Washington County Court. Petitioner was received in Sing Sing Prison December 6, 1938, upon conviction in Kings County Court by the verdict of a jury of the crime of burglary, third degree, as a first offender, he having been sentenced upon that conviction to an indeterminate term of not less than five nor more than ten years. On December 17, 1941, he appeared before the parole board and was held for his full minimum sentence, which will expire August 2, 1943, for further consideration as to parole. His full maximum sentence will expire August 2, 1946. Petitioner contends that his conviction is invalid because the official stenographer who took the minutes at the trial died and it was impossible to transcribe the minutes. A motion for a new trial on similar grounds has been denied. (People v. Bergman, 171 Misc. 946). Petitioner was convicted November 7, 1938, and was sentenced on December 5, 1938. The Code of Criminal Procedure provides that an appeal from a judgment of conviction must be taken within thirty days thereof and the courts have no power to extend the time. (People ex rel. Hirschberg v. Orange County Court, 271 N. Y. 151). The statutory period within which petitioner could have taken an appeal expired several months prior to the death of the official stenographer. Furthermore, the determination of the parole board to compel petitioner to serve the minimum sentence of five years is not subject to review by the courts. (Matter of Hogan v. Canavan, 246 App. Div. 734; People ex rel. West v. Wilson, 258 App. Div. 841.) Order dismissing writ of habeas corpus unanimously affirmed, without costs. Present — Hill, P. J., Crapser, Bliss, Schenck and Foster, JJ.