People ex rel. Wilkinson v. McMann

Appellate Division of the Supreme Court of New York

People ex rel. Wilkinson v. McMann

11 A.D.2d 569, 200 N.Y.S.2d 888, 1960 N.Y. App. Div. LEXIS 9915

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

DecidedMay 16, 1960

StatusPublished

This text of 11 A.D.2d 569 (People ex rel. Wilkinson v. McMann) 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. Wilkinson v. McMann, 11 A.D.2d 569, 200 N.Y.S.2d 888, 1960 N.Y. App. Div. LEXIS 9915 (N.Y. Ct. App. 1960).

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Opinion

Appeal from an order of the 'Clinton County Court which dismissed a writ of habeas corpus. On July 15, 1949 relator was convicted in Monroe County Court of grand larceny in the first degree. Sentence was deferred until July 28, 1949, when sentence was suspended. On February 1, 1950 relator was returned to court, the suspension of sentence was revoked and he was sentenced to six months imprisonment in the Monroe County Penitentiary. Relator sought in the court below to vitiate this conviction (used as a part basis for subsequent multiple offender sentences) on the ground of failure to comply with sections 472, 4801 and 482 of the Code of Criminal Procedure on February 1, 1950, the date when suspension of sentence was revoked. Relator concedes that there was a compliance with section 480 when he appeared for sentence on July 28, 1949. The record clearly shows a compliance with sections 472 and 482 on that date. These sections relate solely to “judgment day” which is the day a defendant appears for sentence, and no other. (People ex rel. Miller v. Martin, 1 N Y 2d 406.) There is no requirement in the Code of Criminal Procedure that the process be repeated on proceedings pertaining to the judgment subsequently. Order unanimously affirmed. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

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Appeal from an order of the 'Clinton County Court which dismissed a writ of habeas corpus. On July 15, 1949 relator was convicted in Monroe County Court of grand larceny in the first degree. Sentence was deferred until July 28, 1949, when sentence was suspended. On February 1, 1950 relator was returned to court, the suspension of sentence was revoked and he was sentenced to six months imprisonment in the Monroe County Penitentiary. Relator sought in the court below to vitiate this conviction (used as a part basis for subsequent multiple offender sentences) on the ground of failure to comply with sections 472, 4801 and 482 of the Code of Criminal Procedure on February 1, 1950, the date when suspension of sentence was revoked. Relator concedes that there was a compliance with section 480 when he appeared for sentence on July 28, 1949. The record clearly shows a compliance with sections 472 and 482 on that date. These sections relate solely to “judgment day” which is the day a defendant appears for sentence, and no other. (People ex rel. Miller v. Martin, 1 N Y 2d 406.) There is no requirement in the Code of Criminal Procedure that the process be repeated on proceedings pertaining to the judgment subsequently. Order unanimously affirmed. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

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Bluebook (online)

11 A.D.2d 569, 200 N.Y.S.2d 888, 1960 N.Y. App. Div. LEXIS 9915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-wilkinson-v-mcmann-nyappdiv-1960.