140 N.Y.S. 621 | N.Y. App. Div. | 1913
Defendant’s appeal to the County Court was allowed by the county judge of the county of Onondaga upon an affidavit alleging as the sole ground of error that the judgment sentencing the defendant to confinement in the Onondaga County Penitentiary for the period of six months imposed an excessive punishment for the crime of which defendant had been found guilty after a jury trial in a Court of Special Sessions. The order of the County Court affirming the judgment recites that the affirmance is “on the ground that this court has no power to modify sentence where the sole ground of appeal is that the sentence is excessive.” Counsel for appellant and for respondent each in his brief submitted on this appeal states that “the only question raised, or to be raised, on this appeal is whether or not the appeal papers, otherwise in conformity with the Code, which raise as the alleged error that the sentence was excessive, conferred jurisdiction upon the County Court. ”
Our attention has not been called to any reported case other than the opinion delivered by the learned county judge when the appeal in this case was before the County Court (78 Misc. Rep. 415), in which it has been held that the County Court has not such jurisdiction.
Section 749 of the Code of Criminal Procedure provides: “ A judgment upon conviction, rendered by a Court of Special Sessions, * * * may be reviewed by the County Court of the county, upon an appeal as prescribed by this title, and not otherwise.” Section 750 defines the causes for which an appeal may be allowed, to wit, “ for an erroneous decision or deter
The power to modify upon appeal sentences legally imposed has heen generally recognized and exercised by the courts. Other reported cases illustrating this statement are: People v. McIntosh (5 N. Y. Cr. Rep. 38); People v. Mulkins (25 Misc. Rep. 599), and People v. Loomis (65 id. 156.)
To deny to a defendant the right to require the appellate court to exercise its discretion in reviewing the sentences pronounced by trial magistrates would, in my opinion, be contrary to the legislative intent and certainly opposed to the current of judicial authority and practice.
The order should be reversed and the case remitted to the County Court of the county of Onondaga, to the end that the question whether the sentence of the Court of Special Sessions was excessive may be there passed upon and determined.
All concurred, except McLennan, P. J., who dissented, upon the opinion of Boss, County Judge. (78 Misc. Rep. 415.)
Judgment reversed and case remitted to the County Court of Onondaga, to the end that the question whether the sentence of the Court of Special Sessions was excessive may be there passed upon and determined.