People ex rel. Peck v. La Vallee

Appellate Division of the Supreme Court of New York

People ex rel. Peck v. La Vallee

8 A.D.2d 906, 187 N.Y.S.2d 11, 1959 N.Y. App. Div. LEXIS 8330

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 9, 1959

StatusPublished

This text of 8 A.D.2d 906 (People ex rel. Peck v. La Vallee) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Peck v. La Vallee, 8 A.D.2d 906, 187 N.Y.S.2d 11, 1959 N.Y. App. Div. LEXIS 8330 (N.Y. Ct. App. 1959).

Pincite

Opinion

Appeal from an order of the County Court of Clinton County which sustained a writ of habeas corpus. The relator was sentenced on November 13, 1950 in the County Court of Saratoga County as a second felony offender to an indeterminate term of 5 to 10 years for burglary in the third degree. It is his contention that there was a failure to comply with section 472 of the Code of Criminal Procedure by failure to delay sentence for a period of two days. It is apparently his contention that the requirement of section 472 may not be waived. The record clearly shows that relator, while represented by able counsel who was personally present, expressly waived any delay in sentence. Such a waiver is expressly permitted .by section 472, which ends with these words: “ but any delay may be waived by the defendant.” We see no implication to the contrary in People ex rel. Ingber v. Jackson (5 A D 2d 1019) where there was no claim or even suggestion of a waiver and obviously no such implication was intended. The writ was improperly sustained, and the order is reversed on the law and the -facts, the writ dismissed, and the relator remanded to the custody of the Warden. Foster, P. J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.

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Appeal from an order of the County Court of Clinton County which sustained a writ of habeas corpus. The relator was sentenced on November 13, 1950 in the County Court of Saratoga County as a second felony offender to an indeterminate term of 5 to 10 years for burglary in the third degree. It is his contention that there was a failure to comply with section 472 of the Code of Criminal Procedure by failure to delay sentence for a period of two days. It is apparently his contention that the requirement of section 472 may not be waived. The record clearly shows that relator, while represented by able counsel who was personally present, expressly waived any delay in sentence. Such a waiver is expressly permitted .by section 472, which ends with these words: “ but any delay may be waived by the defendant.” We see no implication to the contrary in People ex rel. Ingber v. Jackson (5 A D 2d 1019) where there was no claim or even suggestion of a waiver and obviously no such implication was intended. The writ was improperly sustained, and the order is reversed on the law and the -facts, the writ dismissed, and the relator remanded to the custody of the Warden. Foster, P. J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.

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Bluebook (online)

8 A.D.2d 906, 187 N.Y.S.2d 11, 1959 N.Y. App. Div. LEXIS 8330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-peck-v-la-vallee-nyappdiv-1959.