People v. Sutton — 6 N.Y.S. 95

Majority

p. 95

People v. Sutton.

(Supreme Court, General Term, Second Department.

July 2, 1889.)

Headnote

■Criminal Law—Sentence.

Under Pen. Code N. Y. § 333, fixing the punishment of an assault in the third degree at imprisonment for “not more than one year, ” or a fine, or both, and Code Crim Proc. § 718, providing that when a fine is imposed the defendant may he imprisoned until it is paid, a judgment for one year’s imprisonment and a fine, and for imprisonment not exceeding “one day for each dollar of said fine, ” is not erroneous; as, if there is any uncertainty in that part of the judgment relating to the fine, its validity can be tested by habeas corpus, after the expiration of the term of imprisonment.

Appeal from court of sessions, Westchester county.

Nelson H. Balter, Dist. Atty., for the People. Hiram Paulding, for defendant.

This is an appeal from a judgment of conviction of assault in the third degree. There is no error in the judgment. By the Penal Code assault in the third degree is punishable by imprisonment for not more than one year, or by a fine of not more than $500, or both. Section 222. The imposition of a fine is in addition to the sentence of imprisonment; Section 718 of Code of Criminal Procedure provides that where a fine is imposed a convict may be imprisoned until the fine is paid. The sentence imposed in this case was as follows: “For the term of one year, and to pay a fine of two hundred and fifty dollars, and be imprisoned not to exceed one day for each dollar of said fine.” etc. The sentence was in accordance with the Code. When the defendant has served out the term of his imprisonment, he can apply for a habeas corpus, and test the question upon that part of the sentence which imposes the fine, but he can have no relief now as the sentence is within the terms of the law. If it shall turn out that the part of the sentence imposing the fine is void for uncertainty, he can be discharged, but until then he is held under a perfectly valid sentence. We see no error in the judgment, and the sentence seems to be in the exact form prescribed by law. Judgment affirmed