217 A.D. 428 | N.Y. App. Div. | 1926
Lead Opinion
The relator was convicted in the County Court of Kings county of the crime of grand larceny in the first degree. He had never before been convicted of a crime punishable by imprisonment in a State prison. It was, therefore, the duty of the court to impose an indeterminate sentence. (Penal Law, § 2189.) The County Court in which the conviction was had, and before which the relator was arraigned, on the 7th day of May, "1923, passed sentence wherein it adjudged that the relator “ be imprisoned in the State prison at Sing Sing, at hard labor, under an indeterminate sentence, the maximum of such imprisonment to be ten years and the minimum thereof five years.” The judgment, in so far as it so provided, was in strict compliance with the law. Under it the relator at the end of five years would have become eligible to parole by the Parole Board of the State. That Board would then have become empowered to release the relator from imprisonment provided it should determine that there was “ reasonable probability ” that the relator would “ five and remain at liberty without violating the law.” (Prison Law, § 214.) If paroled, the relator would still have remained “ in the legal custody and under the control of the agent and warden of the State prison ” from which he was paroled until the maximum term specified in the sentence had expired. (Id.) The difficulty with the judgment was that after providing for an indeterminate sentence, as above quoted, it continued to provide as follows: “ It is further ordered by the court that on January first, 1926, execution of
The order should be reversed and the prisoner remanded.
All concur, except Cochrane, P. J., dissenting with an opinion.
Dissenting Opinion
(dissenting). Section 2189 of the Penal Law provides that a person never before convicted of a crime punishable by imprisonment in a State prison who is convicted in any court in this State of a felony other than murder, first or second degree, and sentenced to a State prison shall be sentenced thereto under an indeterminate sentence. Section 2188, as it was in 1923 when respondent was sentenced, provided in part as follows: “A court or magistrate * * * whether the defendant has previously been convicted of a crime or not, may suspend sentence or impose sentence and suspend the execution of the whole or a part of the judgment and may in either case place the defendant on probation in accordance with the provisions of section eleven-a of the Code of Criminal Procedure. No provision of this chapter or of the Code of Criminal Procedure or of any general statute shall be construed to prevent the court or magistrate authorized to impose sentence from exercising discretion to suspend sentence or suspend the execution of the whole or a part of the judgment or to place on probation as herein-above provided.” (Italics mine.) It is needless to say that the two sections must be construed together and it seems to me that any conclusion is fallacious which rests only on the construction of either section considered separate and apart from the other. It seems to me incorrect to say that the court was only empowered to impose an indeterminate sentence if by that is meant that the court could not in its discretion exercise its power of suspension in the manner and subject to the limitations provided in said section 2188. Under that section the court may, whether suspension is complete or partial and whether the defendant is or is not on probation, subsequently issue its process for his rearrest and impose the sentence which might have been imposed or order executed the part of the judgment the execution of which may have been suspended. Under such provisions the suspension either in whole or in part does not destroy the indeterminacy of the sentence. A defendant is at all times subject to the control of the court to the same extent that he is subject to the control of the Parole Board in cases where that Board may actt It is urged that this construction of the statute encroaches on the functions
Order reversed on the law, and prisoner remanded.