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People v. Markham

20 N.Y. Crim. 278 Court SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT, Decision date 1906-07-12 English

Delivered by O’Brien, P. J.:

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SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT,
July 12, 1906.
THE PEOPLE v. ADDEN MARKHAM.
(114 App. Div. 387.)

Headnote

(1). Appeal—Court of Special Sessions—no Appeal From Suspended Sentence.
The right to appeal from the Court of Special Sessions is no broader than from the General Sessions, and there is no right of appeal from a conviction on which sentence is suspended, for the right to appeal is wholly statutory.
Motion to dismiss the appeal herein.
H. G. Taylor, for the motion.
C. Livingston, opposed.

The appellant was convicted by the Court of Special Sessions of unlawfully operating a motor vehicle in violation of chapter 538 of the Laws of 1904, hut the court suspended sentence. Appellant took an appeal from the conviction and the district attorney makes this motion to dismiss the appeal upon the ground that in a criminal action an appeal can only he taken from a judgment and that there is no judgment against the appellant in this action.

Section 750 of the Code of Criminal Procedure provides that from Courts of Special Sessions “ an appeal may he allowed for an erroneous decision or determination of law or fact upon the trial.” Section 1414 of the Greater Hew York charter (Laws of 1901, chap. 466) provides: “If any judgment or determination made by the said Court of Special Sessions shall he adverse to the defendant he may appeal therefrom in the

p. 279
same manner as from a judgment in an action prosecuted by indictment, and may be admitted to bail upon an appeal in like manner; and if the judgment of the Supreme Court upon such an appeal shall be adverse to the defendant he may appeal therefrom to the Court of Appeals as prescribed in the Code of Criminal Procedure. In case of any such appeal to the Supreme Court or to the Court of Appeals, the procedure in, and the jurisdiction of, the said courts respectively shall be the same as from a judgment of conviction after indictment.”

This section clearly shows that it was the intention of the Legislature to give the same right of appeal, and no broader right, from the Special Sessions that is provided for in actions at General Sessions.

Section 517 of the Code of Criminal Procedure provides that “ an appeal to the Supreme Court may be taken by the defendant from the judgment on a conviction after indictment * * "x" and upon the appeal any actual decision of the court in an intermediate order or proceeding forming a part of the judgment-roll, as prescribed by section four hundred and eighty-five, may be reviewed.” By this it appears that a right -to appeal from a judgment is given, and from a judgment only. (People v. Bork, 1 N. Y. Cr. Rep. 393 ; People v. Merrill, 14 N. Y. 74 ; Tabor v. People, 90 id. 248; People v. Hughes, 137 id. 29.)

Section 470a, which is entitled “ Suspension of Judgment,” is as follows: “ If the judgment be suspended, after a plea or verdict of guilty, or after a verdict against the defendant upon a plea of a former conviction or acquittal, the Court may pronounce judgment at any time thereafter within the longest period for which the defendant might have been sentenced, but not after the expiration of such period, unless the defendant shall have been convicted of another crime committed during such period.” In this section it clearly appears that where there is no sentence the judgment is suspendéd; that the judg

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ment is the sentence of the court upon the verdict or finding1 of guilty, and to this effect are the adjudications of the courts. In People v. Bork ( 78 N. Y. 346 , 350) the court said: “ There was in the Oyer and Terminer a conviction, but sentence was suspended. There was, therefore, in that court no judgment because the sentence is the judgment.” “ The judgment in a criminal case upon conviction is the sentence of the court.” (People v. Bradner, 107 N. Y. 1 , 11.) “This sentence as entered in the minutes of the court became the judgment of conviction,” etc. (People v. Canepi, 181 N. Y. 398 , 402.)

The appellant, however, contends that he has an appeal as a matter of right, inasmuch as the conviction herein under section 470b of the Code of Criminal Procedure may be proved against him to discredit his testimony as a witness. While the position of the appellant is unfortunate, the difficulty with his contention is that there is no constitutional right of appeal. As said in People v. Dunn ( 157 N. Y. 539 ) in reference to a similar contention: “ The opinion below has sufficiently answered it in holding that no right of appeal is guaranteed by the Constitution, and that such a right is entirely within the legislative judgment.” The right to appeal being, therefore, a mere statutory one, and no appeal having been provided for in cases similar to the one at bar, it follows that the motion to dismiss the appeal must be granted.

McLaughlin, Laughlin, Clabke and Houghton, JJ., concurred.

Motion to dismiss appeal granted. Order filed.

See Note, 11 N. Y. Crim. Rep. 487 .

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