People ex rel. Kolakowski v. Jackson
183 N.Y.S.2d 409
| N.Y. App. Div. | 1959

Appeal from an order dismissing a writ of habeas corpus based upon alleged failure of the court to comply with sections 472 and 480 of the Code of Criminal Procedure. Defendant was indicted in Erie County for the crime of robbery, first degree, and was found guilty by a jury on September 13, 1939. *558On September 15, 1939, after pleading to an information as a second offender, he was sentenced to State prison, being at all times represented by counsel. Defendant first contends he was not asked whether he had any legal excuse why judgment should not be pronounced against him in accordance with section 480 of the code. As part of the record of the defendant he produced a document which stated in part “ The defendant is now asked by the clerk of this court whether he has any legal cause to show why judgment should not be pronounced against him, and no sufficient cause being alleged or appearing to this court why such judgment should not be pronounced”. We are asked to take a negative approach to the document, in that it does not show any answer by the defendant. A presumption of regularity attaches to such document that the proceedings were regular and proper. No evidence was offered by the defendant to overcome such presumption and there is no merit to his contention. Secondly, the two-day waiting period in accordance with section 472: The defendant admits his conviction on September 13, 1939 and on September 15, 1939 the imposition of sentence. He raises the technical objection that it should be 48 hours instead of 42 hours. We interpret from September 13 to 15 to be two days within the meaning of the statute and the claim of the defendant to be without merit. Order appealed from unanimously affirmed. Present — Foster, P. J., Bergan, Coon, Gibson and Herlihy, JJ.