14 A.D.2d 979 | N.Y. App. Div. | 1961
On September 18, 1958 Galea was arraigned and pleaded guilty to disorderly conduct (Penal Law, § 722, subd. 1) at a Court of Special Sessions before a Justice of the Peace in the Town of Bolton, Warren County. On October 18, 1958 he was sentenced to 10 days in jail and the sentence was suspended for a period of one year conditioned on his good behavior. On August 13, 1959 he was again arrested and arraigned on another charge of disorderly conduct (§ 722, subds. 1, 2) in the same court and pleaded guilty. There were further proceedings on this charge. On August 31 the Justice’s docket in the 1959 charge indicates relator was before the court with his counsel and the “ ease discussed ”, and he again “ entered a plea of guilty”. This case was then adjourned to the following day at which time further proceedings were had. The docket of the 1958 charge contains this notation: “Aug. 31 ’59 susp execution revoked on conviction of vio. see 722 sub 1 & 2 page 125 sentence imposed as above ”. Although page 125, which contained the record of the 1959 charge shows the relator was before the court on that day and that the 1959 case was discussed and that he entered a plea of guilty, there is no entry in that docket relating to the 1958 sentence, the suspension of which was revoked on August 31, 1959. If both dockets are read in conjunction there is nothing to suggest that in revoking the 1958 suspension of sentence the mandate of the Code of Criminal Procedure (§ 935) was followed. This plainly requires that on the question of a violation of parole the defendant must be arraigned, and “on his being arraigned and after an opportunity to be heard the court may revoke” the suspension. Hence the court was without jurisdiction to revoke the suspension without arraigning the defendant and allowing him to be heard on this issue. Order dismissing writ of habeas corpus reversed on the law and the relator remanded to the Court