154 N.Y.S. 324 | N.Y. Sup. Ct. | 1915
Upon the 20th day of April, 1915, the defendant was convicted in the County Court of King’s county of the crime of grand larceny in the first degree, and he was thereafter sentenced to be confined for one year in the New York County Penitentiary. He now, in connection with his appeal from said judgment, applies to me at the Special Term, Part I, for a certificate by a justice of this court that there is in his opinion reasonable doubt whether the judgment of conviction should stand, and he has obtained an order to show cause to that end which contains an intermediate stay of execution.
The form of the application, both as to the affidavit and order to show cause, is inartificial, because it is assumed to be an application to a justice of the Supreme Court and not to the court itself. As I had occasion to point out in People v. Tirnauer, 77 Misc. Rep.
The rule governing the Special Term in the determination of an application of this kind is that the court hearing the application need not arrive at a positive conclusion that the trial court erred; it is enough if, in the opinion of the court, there is reasonable doubt whether the judgment should stand; and, in this connection, it is not necessary for the applicant to show that the alleged error did, in fact, prejudice the defendant, but the court must determine that the error complained of could not in any way have affected or prejudiced the defendant before it is warranted in denying a certificate. People v. Tirnauer, supra, and cases there cited; People v. Damron, 80 Misc. Rep. 114. The granting of certificates of reasonable doubt is not infrequently the subject of adverse criticism by unthinking persons who overlook the fact that, whereas in civil cases affecting only rights to property a defeated litigant can obtain a stay of execution pending a review of the case upon appeal by furnishing security, a defendant deprived of his personal liberty in a criminal case can only obtain a stay of execution pending appeal, except where the judgment is of death, if he be able to secure a certificate of reason
In the present case the court should grant the certificate. There are several grounds of error assigned, but I shall only-consider two of them.
The defendant was found guilty of the crime of grand larceny in the first degree, upon the theory that he had, prior to the delivery to the complaining witness, Mrs. Ferrando, of the deed and the policy of title insurance showing the title to be free from incumbrances, and the payment and delivery of the purchase money by her, made statements to Mrs. Ferrando, either orally or in writing, which induced her to part vith her money, and that it was then the defendant’s intention to cheat and defraud her.
The defendant was vice-president of the Bellmore Villa Site Development Company, which owned a trac of land at Bellmore, L. I., which was subdivided into lots, of which about 187 remained unsold, and upon which there appear to have been two blanket mortgages, having at that time a balance of about $9,500 remaining unpaid. Four of these lots were sold and conveyed to Mrs¡ Ferrando in March, 1910, for the sum of $700, ostensibly as being free of incumbrance.
Application granted and defendant admitted to bail in the sum of $2,000.
Application granted.