People ex rel. Davidson v. Morhous

265 A.D. 892, 37 N.Y.S.2d 764, 1942 N.Y. App. Div. LEXIS 6363

Opinion

Subsequently the maximum punishment for this offense was reduced to ten years’ imprisonment (Penal Law, § 1308; Cons. Laws, ch. 40; amd. by L. 1940, eh. 443), but the amendment to the statute was not made retroactive. Appellant’s sole contention is that he should be resentenced and his term reduced as a matter of discretion. The original sentence was proper, in fact mandatory, and under such circumstances this court has no power to reduce the sentence upon appeal in a habeas corpus proceeding. Upon appeal from a judgment of conviction a reduction might be made, but not otherwise. (Code Crim. Pro., § 543; People v. Spagnolia, 260 App. Div. 551.) Order appealed from affirmed without costs. Crapser, Bliss, Heffernan and Foster, JJ., concur; Hill, P. J., dissents.