People v. Rosenkrantz

. This appeal raises three points: The authority of a city magistrate to allow a withdrawal of a plea of guilty and the substitution of a plea of not guilty under the provisions of section 337 of the Code of Criminal Procedure and the inherent power of a city magistrate; the sufficiency of the complaint in its allegation of facts; and the legality of the sentence and commitment of this appellant.

A magistrate has no power under the statute cited by appellant

The provisions of section 31 of the Inferior Criminal Courts Act, which make all sections of the Code of Criminal Procedure, consistent with the act, regulating and controlling the practice and procedure of the Court of General Sessions of the Peace in the City and County of New York applicable, as far as may be, to the practice and procedure in the Court of Special Sessions, are limited to this latter court and in no wise relate to the practice and procedure in the Magistrate’s Court.

There seems to be no inherent power in any statutory court in matters of a jurisdictional nature, more particularly where the case is closed. See People v. McLaughlin, 57 App. Div. 454 ; 16 C. J. 1119, § 2619; People ex rel. Jerome v. General Sessions, 185 N. Y. 504 ; People v. Judges of Dutchess Oyer & Terminer, 2 Barb. 282 , 286.

Although the case of People v. Joyce, 4 N. Y. Crim. Rep. 341 , 345, was a conviction under and for an indictable offense, it states a principle which ought to govern in all cases of a criminal nature. Judge Daniels, writing for the court, said: “ Where a person accused of crime may, inadvertently or unadvisedly, plead guilty to an indictment, and afterwards apply for the privilege to withdraw that plea and plead not guilty, the leave is commonly granted as it should be, in the liberal spirit and exercise of the authority conferred over criminal cases upon the courts, * * The court in the case of Commonwealth v. Crapo, 212 Mass. 209 , 210, citing with approval Commonwealth v. Winton, 108 id. 485, practically followed the same rule and stated that “ if satisfied that his admission of guilt was not voluntary and intentional, but resulted from inadvertence,” the defendant should be permitted to withdraw his plea and plead anew. The trend of authority seems to hold that it is discretionary with the court to permit such a change of plea as a procedural matter. Plain justice demands that a judge who has not lost jurisdiction of a case should be guided by the purpose and spirit of the criminal law and procedure to correct prejudieial'errors committed through mistake; and where a defendant young in years, inexperienced and without the benefit of counsel, is charged with a transgression which in law and in fact isnot criminal, enters a plea of guilty to a defective complaint, the court should, in the exercise of sound discretion, allow a change of plea and a

While it is true that evidence shall not be pleaded, the allegations of the complaint must set forth briefly but with sufficient certainty the character and extent of the offense committed and the immediate results and effects of the acts charged. The complaint here contains the technical charge designating the offense alleged violative of a particular statute; but the specification does not set forth sufficient facts constituting the offense. Huffstater v. People, 5 Hun, 23 , 24; Wood v. People, 53 N. Y. 511 . And in this connection I am not unmindful that the deposition in summary cases in Magistrate’s Court need not possess the technical nicety of or the same fullness of detail as is required in an indictment at common law.

The plea of guilty, however, is not a waiver of the objection that the complaint does not set forth an offense. Vose v. Cockroft, 44 N. Y. 415 , 422; People v. Fuchs, 71 Misc. Rep. 69 ; People v. Bell, 148 N. Y. Supp. 753 ; People v. Earing, 71 Misc. Rep. 615 ; affd., 146 App. Div. 903 ; appeal dismissed, 204 N. Y. 584 .

Furthermore, the commitment which in this case was made, as appears from the return of the learned magistrate, under section 89 of the Inferior Criminal Courts Act is attacked as illegal. The case at bar does not come within the purview of the provisions of the last-mentioned section. This appellant should have been sentenced in accordance with the provisions of the statute under which she was convicted, section 913-c, of the Code of Criminal Procedure, as amended by chapter 868, Laws of 1923, which reads as follows: “Any female adjudged a wayward minor before commitment to an institution shall, so far as practicable, be placed on probation for a period not to exceed two years, subject to the provisions of law applicable to persons placed on probation in title one of the Code of Criminal Procedure. If such minor, by reason of previous delinquency or other adequate reason, is not a fit subject for probation, she shall be committed to any religious, charitable or other reformative institution authorized by law to receive commitments of persons over the age of sixteen years.”

The sentence is erroneous, there appearing no proof in this record “ of previous delinquency or other adequate reason ” to hold that the defendant, appellant, “ is not a fit subject for probation.”

McInerney, P. J., and Herbert, J., vote for a reversal of the judgment and conviction both for errors of law and of fact and to grant a new trial before a city magistrate.

Judgment of conviction reversed for errors of law and of fact and a new trial ordered in the Ninth District Magistrate’s Court, borough of Manhattan.

Fres chi, J., in memorandum of decision dissents as to new trial and votes to dismiss the complaint and discharge the defendant.

Judgment accordingly.