People v. Caine — 40 N.Y. Crim. 109

Majority

p. 109

COURT OF SPECIAL SESSIONS —NEW YORK — BOROUGH OF MANHATTAN.

August 18, 1922.

THE PEOPLE v. WILLIAM CAINE.

Headnote

Practice — Recalling defendant from imprisonment — Retrial—Penal Law, section 2188.

This court has no jurisdiction to modify or change its judgment after the commencement of the imprisonment of the defendant.

p. 110

Before Justices Freschi, Voorhees, and Herbert.

A motion to recall .the defendant from the Hew York County Penitentiary and to reconsider the sentence of the court.

Armin Kohn, for the motion.

Joab H. Banton, District Attorney, opposed.

The defendant was committed on July 21, 1922, to the County Penitentiary on an indeterminate sentence upon his plea of guilty for unlawfully possessing a loaded revolver.

He now seeks a reconsideration of that sentence upon the ground that counsel was not notified to he present on the date of the final' disposition of the case. This court has no jurisdiction to modify or change its judgment at this time. Having-discharged our duty and having exhausted our authority, except to act on the report of the Parole Commission, so far as this motion is concerned we are functus officio. The statute controlling here provides that the imprisonment directed by the judgment shall not be suspended or interrupted after such imprisonment shall have commenced. (Penal Law, § 2188.)

Defendant may, if he be so advised, submit his petition for consideration as to the term of imprisonment to the Parole Commission. He had been in confinement since about March 1, 1922, under an indictment of murder in the first degree, when he was arraigned in this court for sentence. The time spent in jail while awaiting trial will- undoubtedly be considered by the Parole Board, and when it comes to make its report, as it must, the findings and recommendations of that commission will be before the justices constituting the court which sentenced the defendant, for approval- or disapproval.

I advise that this motion be denied.