People v. Sane — 40 N.Y. Crim. 187

Majority

p. 187

COURT OF SPECIAL SESSIONS — CITY OF NEW YORK — APPELLATE TERM — FIRST DEPARTMENT.

November 21, 1922.

THE PEOPLE v. MOU SANE.

Headnote

Disorderly conduct — Breach op the peace — New York Consolidation Act — Excessive sentence.

A sentence of ninety days to the worMionse for using abusive language and raising a cane in a threatening manner is excessive.

Before Hon. Frederic Kernochan, Justice Presiding; Hon. Clarence Edwards, Hon. John J. Freschi, Associate Justices.

John McKinley Wight, attorney for appellant.

Joab H. Banton, District Attorney (Felix C. Benvenga, of counsel), attorney for respondent.

Defendant convicted of disorderly conduct tending to a breach of the peace in using abusive language and raising his cane in a threatening manner, and sentenced to the workhouse for a period of ninety days.

The evidence clearly establishes the complaint charging acts constituting disorderly conduct tending to a breach of the peace

p. 188

by the defendant within the provisions of the New York Consolidation Act.

In view of the nature of the offense shown, we think that the term of imprisonment imposed is excessive. The statement of the magistrate that the defendant had a “ very bad record ” is not borne out by the return on appeal. In fact, a certified copy of the complaint, which is made part of the return, has endorsed thereon “ No Previous Record.”

The defendant having actually been incarcerated in the workhouse since his conviction on November 1, 1922, we order that the judgment of conviction shall be modified to the time of imprisonment already served, and that, as modified, the judgment be affirmed.