5 N.Y.2d 401 | NY | 1959
Appellant pleaded guilty to a charge of attempted possession of a dangerous weapon as a felony under section 1897 of the Penal Law. A bizarre factual picture is presented in the circumstances leading to this man’s arrest, culminating in his shooting on several occasions at the wall of the residence of another man who knew but refused to disclose the identity of a third man, by whom appellant believed himself to have been wronged. An indeterminate penitentiary sentence was imposed under section 203 of the Correction Law, carrying a maximum of three years. A prisoner may be released
What was said in Porfido is correct, following People v. Thompson (251 N. Y. 428), that it may not be presumed that the sentencing court imposed a sentence to serve an indeterminate term as a punishment more severe than the definite terms of sentence in the absence of a finding of incorrigibility. But appellant had the right to have the Appellate Division review the refusal to suspend sentence or the execution of sentence (People v. Moran, 281 App. Div. 865, affd. 306 N. Y. 662). One of the Justices at the Appellate Division, at least, considered that the sentence should be limited to the time already served, and, for aught that appears to the contrary, the majority may have agreed with him except that they considered that they lacked the power. In People v. Porfido (supra), no request was made of the sentencing court to suspend the sentence, nor was suspension considered by the Appellate Division. Under the broad powers of the Appellate Division to reduce sentences is included
The judgment appealed from is reversed upon the ground that the Appellate Division is empowered to modify the sentence imposed by the County Court, and the matter remitted to the Appellate Division for further proceedings not inconsistent with this opinion.
Chief Judge Conway and Judges Desmond, Dye, Ftjld, Fboessel and Burke concur.
Judgment reversed, etc.