People ex rel. Holton v. Hunt

H. T. Kellogg, J. The relator was convicted in the County Court of Kings county of the crime of grand larceny in the first degree. He had never before been convicted of a crime punishable by imprisonment in a State prison. It was, therefore, the duty of the court to impose an indeterminate sentence. (Penal Law, § 2189.) The County Court in which the conviction was had, and before which the relator was arraigned, on the 7th day of May, "1923, passed sentence wherein it adjudged that the relator “ be imprisoned in the State prison at Sing Sing, at hard labor, under an indeterminate sentence, the maximum of such imprisonment to be ten years and the minimum thereof five years.” The judgment, in so far as it so provided, was in strict compliance with the law. Under it the relator at the end of five years would have become eligible to parole by the Parole Board of the State. That Board would then have become empowered to release the relator from imprisonment provided it should determine that there was “ reasonable probability ” that the relator would “ five and remain at liberty without violating the law.” (Prison Law, § 214.) If paroled, the relator would still have remained “ in the legal custody and under the control of the agent and warden of the State prison ” from which he was paroled until the maximum term specified in the sentence had expired. (Id.) The difficulty with the judgment was that after providing for an indeterminate sentence, as above quoted, it continued to provide as follows: “ It is further ordered by the court that on January first, 1926, execution of [430] sentence shall be suspended and defendant placed on probation for the balance of said term.” Assuming that this was a valid provision it would have had the effect of releasing the relator at the end of less than three years, rather than at the end of five years, as provided by the preceding clause of the judgment. Moreover, the relator would have been so released regardless of his conduct while in prison and regardless of the question of “ reasonable probability ” that he would “ remain at liberty without violating the law.” Again, he would have been released in charge of a local probation officer. He would not have remained “ in the legal custody and under the control of the agent and warden ” of the prison from which he might be released. The provision, therefore, would have had the effect of rendering completely nugatory the indeterminate sentence which had been pronounced. It would have constituted a sentence which the County Court was not authorized to pass upon the relator, a first offender. It is argued that the effect of the provision was merely to provide for the suspension of the indeterminate sentence pronounced. The argument fails to take note of the difference between the power of a court to suspend sentence and the power to grant a pardon which resides in the executive. The former is a power to withhold the pronouncement of a judgment or to delay its execution. It is not a power to terminate or interrupt an imprisonment the service of which has once begun. Thus in People ex rel. Forsyth v. Court of Sessions (141 N. Y. 288,294) the Court of Appeals, through O’Brien, J., said: “The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely * '* *.” Whereas of a pardon the court says: “ It releases the punishment and blots out of existence the guilt * * *.” It was said by Russell, J., in People ex rel. Dunnigan v. Webster (14 Misc. 617): “ A suspension means an interregnum of the period between conviction and final judgment.” In People ex rel. Hirschberg v. Seeger (179 App. Div. 792) it was said: “ Until judgment is pronounced, the caséis still"sub judice; and, unless otherwise provided by law, the court has power to defer the imposition of the judgment, or, in other words, suspend sentence.” Again, it was said: “ This distinction is plainly set forth in the Forsyth Case (supra). The difference between the judicial power to postpone pronouncing judgment, and the executive power to relieve from a sentence passed, lies at the base of that decision.” (The italics employed in these citations are mine.) The statute law in relation to suspensions of sentence declares the common law and emphasizes the distinction. Thus section 2188 of the Penal Law, as amended by chapter 568 of the Laws of 1920, in effect at the time of this sentence, provided that “ a [431] court or magistrate authorized to impose sentence upon conviction of any crime not punishable by death or life imprisonment * * * may suspend sentence or impose sentence and suspend the execution of the whole or a part of the judgment and may in either case place the defendant on probation in accordance with the provisions of section eleven-a of the Code of Criminal Procedure.” The power thus declared or conferred was made subject to the following proviso: “ Provided, however, that the imprisonment directed by the judgment, shall not be suspended or interrupted after such imprisonment shall have commenced.” It is argued that the proviso was directed against an order of suspension made subsequently to the judgment. It will be observed, however, that the proviso did not state that a sentence “ shall not be subsequently ordered suspended ” but that it “ shall not be suspended or interrupted after such imprisonment shall have commenced.” Thus the bar was against the subsequent suspension or interruption, by whatever order, whether prior or subsequent. Moreover, the proviso would have been valueless unless it ran against an order of suspension contained in the original judgment for it is only the court upon which the duty of pronouncing sentence devolves which has the power of suspension. The statute conferred the power of suspension only upon the “ court or magistrate authorized to impose sentence upon conviction of any crime.” The proviso was a restriction upon the power conferred by the section of which the proviso was a part. Necessarily, then, it must have inhibited the court which granted the judgment from then granting an order of suspension to take effect after service thereunder had begun. The proviso was a clear recognition of the common-law distinction between the judicial power to postpone the execution of a judgment and the executive power to terminate the service of a sentence thereunder. It seems clear to me, therefore, that in the case at bar the order Clause which followed the indeterminate sentence pronounced, since it provided for a cessation of an imprisonment after its service had begun, was not a suspension of sentence which the court had a right to make. The relator derives much comfort from the fact that the section of the Penal Law referred to conferred the power to “ suspend the execution of the whole or a part of the judgment.” He evidently considered that the phrase “ a part of the judgment ” was the equivalent of the phrase “ any part of the judgment.” There is clearly no force in the argument, for a court which delayed the taking effect of a sentence would necessarily suspend the execution of “ a part of the judgment.” It seems to me, therefore, that we return to our original conclusion that the order contained in the judgment, if effective, would have violated the statutory [432] provisions in relation to an indeterminate sentence, the only sentence which the court had the power to impose, and the very sentence which it did impose. In my judgment it should be regarded as surplusage and, therefore, wholly ineffective. (People ex rel. Paris v. Hunt, 201 App. Div. 573, 574.) The order should be reversed and the prisoner remanded. All concur, except Cochrane, P. J., dissenting with an opinion.