People Ex Rel. Woodin v. Ottaway , 247 N.Y. 493 ( 1928 )

Penal Law, section 2188, gives authority to a court, not merely to suspend sentence, but to impose sentence and suspend the execution of the judgment.

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 (Comm. v.Dowdecain's Bail, 115 Mass. 133, 136; cf. Code Crim. Pro. § 483, subd. 2; § 11-a, subd. 4).

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; People v. Nesce, 201 N.Y. 111; People v. Brown, 153 App. Div. 234; People v. Graves, 31 Hun, 382; People ex rel.Gerhrmann v. Osborne, 79 N.J. Eq. 430, 439). 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. U.S. v. Murray, 275 U.S. 347, andCook v. U.S., 275 U.S. 347).

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.

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 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, ch. 279, amending Penal Code, § 12; People ex rel.Forsyth v. Court of Sessions, 141 N.Y. 288, 294). Not till 1918 was there a statute giving power to impose a sentence in the first instance, and thereafter stay the judgment (L. 1918, ch. 457; cf. L. 1913, ch. 125, amending Code Crim. Pro. § 517, and superseding People v.Flaherty, 126 App. Div. 65). Obviously section 546 was framedalio 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. 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. Pro. § 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 informationdehors the record. It is not shorn of the power by an intermediate appeal.

The order should be affirmed without costs.