People v. Kelly , 66 N.Y.S. 733 ( 1900 )

Foster, J.

The defendant for a serious misdemeanor (receiving money for promising to secure a position for the complainant in the street cleaning department of the city of New York) was sentenced by the Court of Special Sessions to one year’s imprisonment and to pay a fine of $400, and to stand committed, one day for each dollar of the fine unpaid. This court is now asked to remit the fine, because the defendant has served the one year’s imprisonment imposed, and also twenty-five days on account of the unpaid fine; has been a “ good prisoner”; and is unable to pay the balance of the fine. While this court has the undoubted power to remit such fine (Code Crim. Pro., § 484), it ought not to exercise it unless some good reason for so doing is shown, otherwise, this court would be sitting in review of the judgment of the Court of Special Sessions. That court is given ample power to grant the relief prayed for, by the act creating it (Laws of 1895, chap. 601), and it seems to me that no reason is given, or appears, why the application is not so made. That court imposed the fine after a hearing or trial, and with a full knowledge of the circumstances of the defendant’s crime, and doubtless, because it felt that the maximum imprisonment, which it had power to inflict, was not an adequate punishment for the crime of which the defendant was convicted. The good conduct of the prisoner is not a sufficient reason for the action of this court; for that, the law gives, and the defendant has undoubtedly received, a commutation of sentence. Nor is his impecuniosity a sufficient reason, for the Court of Special Sessions appears to have had that contingency in mind when they directed the detention of the prisoner one day for each dollar of the fine unpaid. For these reasons, notwithstanding the recommendation of the district attorney, I must deny the motion, but with leave to renew to the Court of Special Sessions, or, on such further facts as the petitioner may be able to present.

Motion denied, with leave to renew to the Court of Special Sessions.