People ex rel. Woodin v. Ottaway

• Decision Date: 27 March 1928
• Citation: 161 N.E. 157,247 N.Y. 493
• Parties: PEOPLE ex rel. WOODIN, Dist. Atty., v. OTTAWAY, County Judge.
• Court: New York Court of Appeals Court of Appeals

247 N.Y. 493

161 N.E. 157

PEOPLE ex rel. WOODIN, Dist. Atty.,

v.OTTAWAY, County Judge.

Court of Appeals of New York.

March 27, 1928.

In the matter of the application of the People of the State of New York, on the relation of Glenn W. Woodin, as District Attorney for Chautauqua County, for a mandamus order against Lee L. Ottaway, individually and as County Judge of Chautauqua County, and the County Court of Chautauqua County, impleaded with Lyle Cook and others, to compel respondent judge to complete commitment papers and vacate and set aside order previously made in reference to sentence of impleaded respondents. From an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (222 App. Div. 711, 224 N. Y. S. 887), affirming an order of the Special Term of the Supreme Court (129 Misc. Rep. 120, 220 N. Y. S. 671), denying application for the order of peremptory mandamus, relator appeals by permission.

Affirmed.

Crane, Kellogg, and Andrews, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Glenn W. Woodin, Dist. Atty., of Dunkirk, for appellant.

Frank H. Mott, of Jamestown, for respondent.

PER CURIAM.

Penal Law (Consol. Laws c. 40), § 2188, gives authority to a court not merely to suspend sentence, but to impose sentence and suspend the execution of the judgment.

[1] In the view of a majority of this court, the mandate of the County Court was not a revocation of the sentence previously imposed and the imposition of a new one. It was a suspension of the execution of the judgment upon compliance by the defendants with a condition which they might accept or reject Com. v. Dowdican's Bail, 115 Mass. 133, 136. Cf. Code Crim. Proc. § 483, subd. 2; section 11-a, subd. 4.

[2] Jurisdiction to stay the execution did not expire with the term at which the prisoners were tried. Like the power to revoke the suspension, it was not confined to one term nor even to one judge, but was vested in the court. People v. Bork, 96 N. Y. 188, 198;Moett v. People, 85 N. Y. 373, 383;People v. Everhardt, 104 N. Y. 591, 11 N. E. 62;People v. Nesce, 201 N. Y. 111, 94 N. E. 655;People v. Brown, 153 App. Div. 234, 138 N. Y. S. 7; People v. Graves, 31 Hun, 382; State ex rel. Gerhrmann v. Osborne, 79 N. J. Eq. 430, 439, 82 A. 424. The one limitation upon the time of its exercise is stated in the statute (Penal Law, § 2188):

‘The imprisonment directed by the judgment, shall not be suspended or interrupted after such imprisonment shall have commenced.’ Cf. United States v. Murray, and Cook v. United States, 48 S. Ct. 146, 72 L. Ed. --, Jan. 3, 1928.

[3] The order suspending the execution of this judgment was made by the County Court before imprisonment had commenced. It was made by the same judge who had presided at the trial, so that there is no occasion to consider the questions of judicial comity or propriety that might conceivably arise if it had been made by another judge while the trial judge was present or competent to act. If the stay was indiscreet, the indiscretion may not be remedied by resort to a mandamus.

[4] Jurisdiction was not lost through the appeal to the Appellate Division and the affirmance by that court before the order for a stay was made. Section 546 of the Criminal Code does not touch the situation. All that it does is to confer power on appellate courts to make such directions as may be necessary in view of changed conditions to carry a judgment into effect; as, e. g., where the date fixed for the execution of a death sentence has expired pending an appeal. There was no thought to invest them with jurisdiction to determine whether sentence should be suspended or a defendant placed upon probation. This conclusion becomes the more obvious when we consider a few dates. Section 546 goes back in its present form to 1882. The power to suspend sentence did not have recognition in any statute till 1893. L. 1893, c. 279, amending Penal Code, § 12; People ex rel. Forsyth v. Court of Sessions of Monroe County, 141 N. Y. 288, 294,36 N. E. 386,23 L. R. A. 856. Not till 1918 was there a statute giving power to impose a sentence in the first instance, and thereafter stay the judgment. L. 1918, c. 457. Cf. L. 1913, c. 125, amending Code Crim. Proc. § 517, and superseding People v. Flaherty, 126 App. Div. 65, 110 N. Y. S. 699. Obviously section 546 was framed alio intuitu. The problem might wear another aspect if the discretion to suspend or stay were subject to review upon appeal. There is no contention that it is.

[5][6] A judgment of affirmance either by this court or by the Appellate Division is not an expression of opinion as to the propriety of staying or suspending the execution of the sentence. There is no jurisdiction in either court to express such an opinion with any authoritative force. The Appellate Division can indeed reduce the sentence, but never below the minimum penalty provided by law. Code Crim. Proc. § 543. The power to stay execution, like the power to revoke the stay, or to place a defendant on probation, is confided to the court of original jurisdiction, which may be controlled in the exercise of its discretion by information dehors the record. It is not shorn of the power by an intermediate appeal.

The order should be affirmed, without costs.

CRANE, J. (dissenting).

I am for reversal on two grounds. In the first place, the county judge had no power to change his sentence after it once had been imposed. Having sentenced the defendants to state prison, he subsequently and after affirmance of the judgments of conviction by the Appellate Division sent for the defendants and changed his sentence from imprisonment to one of a fine of $300. He repeatedly stated that he would change or modify his sentence. This he attempted to do by suspending the execution of the judgment on condition that the defendants pay a fine of $300. The defendants paid the fines and were released. This action of the county judge was illegal and unauthorized.

Some of my associates say that the imposition of the fine, although illegal, may be ignored; that the judge merely suspended the execution of the judgment; that even if he had no power to impose the fine, the matter may be overlooked or disregarded. Can it be so far disregarded that the defendants can sue and get back the money illegally paid? Or again, can the payment of the fine be so far disregarded that the judge, under section 2188 of the Penal Law, may revoke the suspension and execute the original judgment of imprisonment? These questions to my mind show that we cannot disregard the imposition of the fine as a wholly unjustified and illegal act. The judge in reality as well as in form changed the sentence from one of imprisonment to one of fine, and released the defendants. He had no power to impose such a condition, and he had no power to change his sentence from imprisonment to fine. His act must be considered as a whole. I have never heard of a court bargaining with the defendants regarding the sentence or judgment to be entered. The law does not recognize such methods. Restitution for wrong done often is taken into consideration by the courts in imposing sentence, but here there was no restitution for any wrong done. The court was simply executing the law in imposing a sentence provided by law, and there is no law for the suspension of sentence upon condition that a defendant pay money to the county.

I also agree with Judge KELLOGG that section 2188 gives no power to the county judge to suspend sentence after affirmance by the Appellate Division. The last words of the section, reading, ‘Provided, however, that the imprisonment directed by the judgment, shall not be suspended or interrupted after such imprisonment shall have commenced,’ must be read in connection with other provisions of the Code of Criminal Procedure and the Penal Law. After a sentence of imprisonment, it is the duty of the sheriff forthwith to deliver the defendant to the proper prison authorities for incarceration. Before he does this, the judge may suspend the judgment. But if the sheriff in executing the judgment is stayed by a certificate of reasonable doubt, the stay or the certificate operating as a stay takes the place of the imprisonment. In other words, this proviso of section 2188 runs until the imprisonment in the ordinary course of procedure or until something else is substituted for the imprisonment. The certificate of reasonable doubt is such substitution. These defendants were out on a certificate of reasonable doubt pending the appeal to the Appellate Division. That court passed upon the judgment of conviction and affirmed it. I do not think it was the intention of the Legislature to give to the trial court thereafter the power to suspend the judgment which the Appellate Division affirmed. The fact that the Appellate Division has the power to modify the judgment imposed upon the defendants is a strong indication that the power of suspension given in section 2188 did not survive the action of the Appellate Division. In fact, the power ceased long before action by the Appellate Division. It ceased with the imprisonment of the defendants. If there had been no certificate of reasonable doubt, they would have been imprisoned immediately. The certificate of reasonable doubt, while keeping them out of prison, did not in my judgment keep alive the power to suspend the execution of the judgment.

This interpretation of section 2188 to my mind is quite reasonable. If the trial courts are to have the power of suspension after the appellate courts have passed upon the record, the matter should be called to the attention of the Legislature so that their attention...