Opinion
April 1, 1971
Appeal from the Erie County Court.
Present — Del Vecchio, J.P., Marsh, Gabrielli, Moule and Henry, JJ.
Order unanimously reversed, application denied and original sentence of June 19, 1968 reinstated. Memorandum: Defendant was convicted on June 19, 1968 of attempted grand larceny in the first degree and conspiracy committed in December, 1965 and he was sentenced to two and one-half to five years in Attica Prison for the larceny and one year for the conspiracy, both sentences to run concurrently. He was incarcerated from June 19, 1968 to August 1, 1968 when he was released on bail pursuant to a certificate of reasonable doubt. On September 11, 1969 we affirmed the conviction on the larceny charge and reversed the conviction on the conspiracy charge ( 32 A.D.2d 463), and on April 9, 1970 the Court of Appeals affirmed ( 26 N.Y.2d 915). Subsequently, defendant petitioned Erie County Court for an order modifying his sentence and on August 3, 1970 an order was entered modifying it to a term of not less than 13 months nor more than 26 months. Section 2188 of the Penal Law and section 470-a of the Code of Criminal Procedure, as they existed at the time of the commission of the crime, control. (Penal Law, § 5.05, subd. 3; L. 1967, ch. 681, § 105.) They expressly prohibited a court or Judge from interrupting a prisoner's sentence after such imprisonment has commenced. ( People ex rel. Paris v. Hunt, 201 App. Div. 573, affd. 234 N.Y. 558.) Furthermore, the action of the Judge before whom the motion was made was contrary to the doctrine that one Judge of co-ordinate jurisdiction should not modify a judgment made by a colleague of equal rank in the same case. The remedy is by appropriate appellate review. ( People v. Canna, 35 A.D.2d 1062.)