Opinion
June 28, 1961
Appeal from the Wyoming County Court.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Order unanimously reversed, without costs of this appeal to either party, and matter remanded to Wyoming County Court for further proceedings in accordance with memorandum. Memorandum: Relator is presently serving a maximum sentence of life imprisonment upon his conviction of murder, second degree, on April 19, 1920 in Supreme Court, Steuben County. In this habeas corpus proceeding he alleged that the sentencing court did not comply with sections 471 and 472 of the Code of Criminal Procedure in that the court did not "appoint a time for pronouncing judgment" and that the time of sentencing was not "at least two days after the verdict." Appellant contends that the jury returned a verdict "at about midnight April 18, 1920" and it is conceded sentence was imposed on the morning of April 19. From the documentary evidence submitted by respondent and taking judicial notice of calendar dates in April, 1920 it is possible to reconstruct a possible course of events. The trial apparently continued through Saturday, April 17 and at 2:30 in the morning (presumably Sunday the 18th) after receiving the jury's verdict court was adjourned to Monday, April 19 at 10:00 in the morning. The same documentary evidence indicates that court was to adjourn without date on the 19th and thereupon sentence was imposed. In this event, of course, the further provision in section 472 of the Code of Criminal Procedure would negate the requirement of the waiting period of two days. (Cf. People v. Spencer, 179 N.Y. 408, 416.) Petitioner, however, in this proceeding alleges that the court remained in session four days after judgment was pronounced upon him. He also contends that after the jury returned a verdict the court directed that relator be brought back "later this morning". Lastly, he alleges that his counsel was not present at the time of sentence. The hearing in the present proceeding was informal and consisted of a series of colloquies among the court, the relator and counsel for respondent. This did not conform with the requirements recently enunciated in People ex rel. Bartlam v. Murphy ( 9 N.Y.2d 550). Therein it was stated that the relator in a habeas corpus proceeding is entitled to a full-scale hearing and "should be given (an) opportunity to establish his contentions through sworn testimony, if he is so advised." While the court was there considering a claim that relator and his counsel were absent during a portion of the trial it is here pertinent. "The court's failure to comply with any one of the several code provisions relating to the judgment and its pronouncement (Code Crim. Pro., §§ 471-473, 480, 481) would, as the relator urges, entitle him to remand for resentencing." ( People ex rel. Vischi v. Martin, 8 N.Y.2d 63, 66.) Appellant is entitled to such a formal hearing of the several allegations set forth in his petition. After respondent has submitted his proof, if any, a factual determination may be made by the court.