McHugh v. Joyce

2 A.D.2d 976, 157 N.Y.S.2d 129, 1956 N.Y. App. Div. LEXIS 3704

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 1956
• Status: Published

Opinion

Appeal from an order denying an application to compel respondent to correct an allegedly illegal sentence of one Miguel A. Walker by resentencing him in conformity with section 1048 of the Penal Law. Order reversed, without costs, application granted and matter remitted to the County Court of Kings County for resentenee. On Walker’s plea of guilty to murder in the second degree, the sentencing court, with every good intention, of course, imposed a sentence of not less than 20 nor more than 22 years in a State prison. Section 1048 of the Penal Law, prior to its amendment hy chapter 32 of the Laws of 1928, required the imposition of a mandatory sentence of 20 years to life (People v. Pechota, 209 App. Div. 164). By that amendment the wording of the provision for the minimum sentence was changed to “ not less than twenty years ”, but the wording of the provision for the maximum sentence was left unchanged. The sentencing court was thereby given the power to increase the minimum sentence when the circumstances seemed to warrant it, but the maximum sentence remained mandatory (People ex rel. Mummiani v. Lawes, 258 App. Div. 643; People ex rel. Mummiani v. Jackson, 295 N. Y. 914; People ex rel. Pellicer v. Jackson, 271 App. Div. 766; People v. Gagnier, 254 App. Div. 716; People ex rel. Miresi v. Murphy, 253 App. Div. 441, motion for leave to appeal denied 278 N. Y. 741; Matter of Nasti v. Downs, 169 Misc. 989). Beldoek, Acting P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.