People ex rel. Kuney v. Adams

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: PER CURIAM.
• Citation: People ex rel. Kuney v. Adams, 280 N.Y. 794, 21 N.E.2d 621 (N.Y. 1938)
• Decision Date: 17 May 1939
• Parties: People ex rel. Kuney v. Adams

280 N.Y. 794

21 N.E.2d 621

PEOPLE ex rel. Clark G. KUNEY and another, Appellants,

v.William A. ADAMS, Respondent.

Court of Appeals of New York.

May 17, 1938.

Appeal from Supreme Court, Appellate Division, First Department, 256 App.Div. 802, 9 N.Y.S.2d 403.

Proceeding in the matter of the application of James F. Donnelly for a writ of habeas corpus to inquire into the causes of detention of Clark G. Kuney and Edward A. Sauter, who were convicted of grand larceny in the first degree, and for a stay and the admission of such parties to bail pending appeal from a decision refusing to effect their release by habeas corpus. William A. Adams, Warden of the City Prison, is the respondent. Defendants were sentenced to State Prison for a period of years, and they obtained a certificate of reasonable doubt.

The judgment of conviction was affirmed February 5, 1937, by the Appellate Division in People v. Commonwealth Bond Corporation, 250 App.Div. 701, 294 N.Y.S. 489, and on January 4, 1938, by the Court of Appeals, 276 N.Y. 611, 12 N.E.2d 601, with two judges dissenting.

On January 18, 1938, the judge who had tried defendants granted a motion for an order to show cause why a new trial should not be granted to defendants on the ground of newly discovered evidence. On examination of the application, the trial judge found himself unable to grant it by reason of the limitations of section 466 of the Code of Criminal Procedure, on the ground that more than one year had elapsed since the judgment. He thereupon, on February 28, 1938, denied the motion for a new trial saying in his opinion: “While I shall not suspend sentence, I shall indefinitely suspend the execution thereof and an order may be entered to that effect.” Later he decided to reinvestigate the matter because of representations made to him by groups of bondholders of the Commonwealth Bond Corporation whose property was the subject of the larceny, and by the trustee in bankruptcy.

The hearings before the judge were reported stenographically, and though no formal evidence appeared in the minutes, defendants' counsel was present, together with the District Attorney and other interested parties. He finally decided to let the original judgment be carried out.

The position of the petitioner was that the judge's power at trial term was exhausted when he suspended the execution of sentence and thereafter he had no power to revoke his action. Even if he did have jurisdiction, petitioner argued, ...