People ex rel. Walker v. Wilkins

Appellate Division of the Supreme Court of New York

People ex rel. Walker v. Wilkins

23 A.D.2d 619, 256 N.Y.S.2d 810, 1965 N.Y. App. Div. LEXIS 4850

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

DecidedFebruary 18, 1965

StatusPublished

This text of 23 A.D.2d 619 (People ex rel. Walker v. Wilkins) 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. Walker v. Wilkins, 23 A.D.2d 619, 256 N.Y.S.2d 810, 1965 N.Y. App. Div. LEXIS 4850 (N.Y. Ct. App. 1965).

Pincite

Opinion

Order unanimously reversed on the law, writ sustained, and relator remanded to the Supreme Court, Bangs County, Criminal Term, for resentence of relator and for further proceedings in accordance with the Memorandum. Memorandum: The relator is imprisoned as a third felony offender under a 1958 conviction. One of the underlying felonies was his first conviction in 1945. He claims that section 480 of the Code of Criminal Procedure was not complied with when he was sentenced by Bangs County Court on November 7, 1945 for the crime of assault in the second degree. On a habeas corpus hearing the court assumed, for the purposes of that proceeding, that the fact situation was as claimed by the relator. It is his contention that when he appeared for judgment the Kings 'County Court, after compliance with section 480 of the Code of Criminal Procedure, pronounced the sentence as follows: “ Sentence State Prison at Sing Sing for a minimum term of not less than two (2) years and a maximum term of not more than five (5) years. Judge Sobel, J., Pt. 5, Date Nov. 7, 1945.” That thereafter and at an unknown time when neither the relator nor his attorney was present, the sentence was changed by someone, under the same date as the original sentence, to read as follows: “To be delivered to the reception center of the Department of Correction at Elmira, New York for classification and confinement pursuant to Article 3A of the Correction Law. 11/7/45 Sobel, J. Pt. 5.” Section 473 of the Code of Criminal Procedure provides in part that “For the purpose of judgment, if the conviction be for a felony, the defendant must be personally present”. The alteration of the sentence under the circumstances here presented made the altered sentence an invalid one and requires that the relator be returned to the Supreme Court of Kings County, Criminal Term, for resentence and for further proceedings not inconsistent herewith. The change in the sentence was more than an irregularity and must be corrected. Relator [620]*620must :be resenteneed and at that time there must be compliance with section 480. (Appeal from order of Wyoming County Court dismissing, following a hearing, writ of habeas corpus and remanding relator to custody of Warden.) Present — 'Williams, P. J., Bastow, Goldman, Noonan and Del Veechio, JJ.

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Order unanimously reversed on the law, writ sustained, and relator remanded to the Supreme Court, Bangs County, Criminal Term, for resentence of relator and for further proceedings in accordance with the Memorandum. Memorandum: The relator is imprisoned as a third felony offender under a 1958 conviction. One of the underlying felonies was his first conviction in 1945. He claims that section 480 of the Code of Criminal Procedure was not complied with when he was sentenced by Bangs County Court on November 7, 1945 for the crime of assault in the second degree. On a habeas corpus hearing the court assumed, for the purposes of that proceeding, that the fact situation was as claimed by the relator. It is his contention that when he appeared for judgment the Kings 'County Court, after compliance with section 480 of the Code of Criminal Procedure, pronounced the sentence as follows: “ Sentence State Prison at Sing Sing for a minimum term of not less than two (2) years and a maximum term of not more than five (5) years. Judge Sobel, J., Pt. 5, Date Nov. 7, 1945.” That thereafter and at an unknown time when neither the relator nor his attorney was present, the sentence was changed by someone, under the same date as the original sentence, to read as follows: “To be delivered to the reception center of the Department of Correction at Elmira, New York for classification and confinement pursuant to Article 3A of the Correction Law. 11/7/45 Sobel, J. Pt. 5.” Section 473 of the Code of Criminal Procedure provides in part that “For the purpose of judgment, if the conviction be for a felony, the defendant must be personally present”. The alteration of the sentence under the circumstances here presented made the altered sentence an invalid one and requires that the relator be returned to the Supreme Court of Kings County, Criminal Term, for resentence and for further proceedings not inconsistent herewith. The change in the sentence was more than an irregularity and must be corrected. Relator [620]*620must :be resenteneed and at that time there must be compliance with section 480. (Appeal from order of Wyoming County Court dismissing, following a hearing, writ of habeas corpus and remanding relator to custody of Warden.) Present — 'Williams, P. J., Bastow, Goldman, Noonan and Del Veechio, JJ.

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Bluebook (online)

23 A.D.2d 619, 256 N.Y.S.2d 810, 1965 N.Y. App. Div. LEXIS 4850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-walker-v-wilkins-nyappdiv-1965.