Majority
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.