People ex rel. Bester v. Johnston

9 A.D.2d 827, 192 N.Y.S.2d 947, 1959 N.Y. App. Div. LEXIS 6186

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1959
• Status: Published

Opinion

Appeal from a decision of the Clinton County Court denying an application for a writ of habeas corpus. Appellant was sentenced to life imprisonment, upon the recommendation of a jury, by the Court of General Sessions, County of New York, following a conviction of murder in the first degree. Appellant contends that he should have been asked the Question required by section 480 of the Code of Criminal Procedure in the nreeise language of the statute. The record shows that the defendant was asked, in the nresence of his counsel, the following question on two occasions at the time of his sentence: “John Bester, what have you now to say why iudament of the Court should not he pronounced against yon according to law? ” The Question is even broader and more inclusive than the statute renuires, and is substantial compliance therewith. It is not essential that the nreeise language of the statute be used, if the question fully affords an opporfnnitv to voice any reason why sentence should not be pronounced. There is nothing in People ex rel. Miller v. Martin (1 N Y 2d 406) which holds to the contrary. Defendant’s contention that he was given no opportunity to reply is without merit. Defendant was represented by counsel, and if either defendant or his counsel had said anything or even attempted to say anything at that point, the record would so indicate. Decision unanimously affirmed. Present — Foster, P. J., Bergan, Coon, Herlihy and Reynolds, JJ.