People ex rel. Gottehrer v. Wiesendanger

179 A.D. 124, 36 N.Y. Crim. 55, 165 N.Y.S. 823, 1917 N.Y. App. Div. LEXIS 6534

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 27, 1917
• Status: Published

Opinion

Jenks, P. J.:

The County Court dealt with the judgment of the Court of Special Sessions of the city of Yonkers as if there was an appeal therefrom. (See Code Crim. Proc. § 764.) It could not review that judgment save upon appeal. The statute is explicit. (Code Crim. Proc. § 749.) But the appeal had theretofore been dismissed.

It does not appear that the County Court attempted to act by virtue of the procedure prescribed and the powers conferred upon it by sections 909, 910 and 911 of the said Code. These sections contemplate a defendant in custody under a judgment. They authorize the County Court, in consideration of the circumstances, to discharge the defendant absolutely or on parole under a probation officer, or upon giving security, or, if a minor, to have him bound out, or, if of age, to authorize a contract for his service, under control, or to be kept in jail. But they neither directly nor inferentially authorize the County Court to disturb the terms of the judgment itself.

Inasmuch as the order of the Special Term recites that the sheriff returned that he held the relator upon a commitment of the County Court, I think that it should be affirmed. But the relator stands convicted under the judgment of the said Court of Special Sessions, in full force and vigor, and he is liable to respond to it.

Thomas, Stapleton, Putnam and Blackmab, JJ., concurred.

Order affirmed.