People v. Harcq

• Decision Date: 13 April 1944
• Citation: 292 N.Y. 321,55 N.E.2d 179
• Parties: PEOPLE v. HARCQ.
• Court: New York Court of Appeals Court of Appeals

292 N.Y. 321

55 N.E.2d 179

PEOPLE

v.HARCQ.

Court of Appeals of New York.

April 13, 1944.

Appeal from Nassau County Court.

Clara Harcq was convicted of assault in the third degree in the City Court of the City of Long Beach (Zimmerman, J.), which judgment was modified by the Nassau County Court by eliminating from the judgment of conviction that portion thereof which provided for a sentence of 500 days in the Nassau county jail in default of the payment of a fine of $500 and limiting the sentence to imprisonment in said jail for a term of 60 days, and as modified affirmed, and defendant appeals by permission.

Affirmed. Sidney I. Prager, of New York City, for appellant.

Edward J. Neary, Dist. Atty., of Mineola (Philip Huntington, of Glen Cove, of counsel), for respondent.

CONWAY, Judge.

The defendant was convicted of the crime of assault in the third degree by a City Court Judge of the City of Long Beach, Nassau County, sitting as a Court of Special Sessions. The defendant was fined $500 (with provision for service of 500 days in the Nassau county jail in default thereof) and sentenced to serve 60 days imprisonment in the Nassau County jail. Upon appeal to the County Court of Nassau County, and learned County Judge was of the opinion that he was without the power, under section 764 of the Code of Criminal Procedure, to modify the sentence so as to suspend the 60-day sentence or the execution thereof and to place the defendant on probation. The County Judge, did, however, modify the judgment of conviction by eliminating the provision that the defendant serve 500 days in the Nassau County jail in default of payment of the fine and limited the sentence to imprisonment for 60 days. With the modification the judgment was affirmed. Appeal by defendant was allowed to this court in order that it might be determined whether the ruling was correct that it was not within the power of the Appellate Court to suspend the 60-day sentence of defendant or its execution.

Code of Criminal Procedure, section 764, reads as follows: ‘After hearing the appeal the court must give judgment without regard to technical errors or defects which have not prejudiced the substantial rights of the defendants, and may render the judgment which the court below should have rendered, or may, according to the justice of the case affirm or reverse the judgment in whole or in part, as to all or any of the defendants, if there be more than one, or may order a new trial, or may modify the sentence.’ (Emphasis supplied.)

Appellant relies upon the italicized portion of the language of the statute. The People, on the other hand, rely upon People v. Maher, 92 Misc. 50, 52, 53, 155 N.Y.S. 279, 281, wherein it was said: ‘* * * the statute defining the appellate jurisdiction of this court is not broad enough to afford appellant the relief which she seeks. This relief is either an unconditional release from the institution where she is confined under a partially executed sentence, or a release on a suspension of sentence by this court and a placing on probation. The law provides that upon the hearing of an appeal this court is to give judgment without regard to technical errors or defects which have not prejudiced the substantial rights of a defendant, and that it may render the judgment which the court below should have rendered, or according to the justice of the case affirm or reverse the judgmet in whole or in part, or order a new trial either in the court below or before it, or modify the sentence. This court cannot, in the exercise of the power to render the judgment which the court below should have rendered, suspend sentence and place a defendant on probation. A suspending of sentence and a placing on probation are not the rendition of judgment. Such action is the deferring of judgment. It can only suspend sentence and place on probation where a new trial can be and is had before it.’

That case (decided in 1915) is the only case called to our attention which directly construes the language employed in the statute under consideration.

Section 2188 of the Penal Law, Consol.Laws, c. 40, provides, in part: ‘The court, judge, justice or magistrate authorized to impose sentence upon conviction may, except as otherwise provided in this section, (1) suspend sentence, or (2) may impose sentence and suspend the execution of the judgment * * *’ (Italics supplied.)

In People ex rel. Woodin v. Ottaway, 247 N.Y. 493, 161 N.E. 157, the County Court Judge sentenced the defendants to a State prison for the crime of assault in the second degree. After affirmance by the Appellate Division, the County Court suspended the execution of the judgment on condition that the defendants pay a fine. An application was subsequently made to the Supreme Court by the District Attorney for an order of mandamus directed to the County Judge, commanding him to vacate the order of resentence. The application was denied, and the order denying it was affirmed by the Appellate Division ‘as a matter of law, and not in the exercise of any discretion.’ 222 App.Div. 711, 224 N.Y.S. 887, 888. Thereafter the Appellate Division granted leave to appeal to this court. This court affirming, in a per curiam opinion said: ‘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’. Page 495 of 247 N.Y.,page 157 of 161 N.E.

It was further said (pages 496, 497, of 247 N.Y., page 158 of 161 N.E.): ‘Jurisdiction was not lost though 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...