And it has been so ruled in the courts of some of the States. Hamilton v. Commonwealth, 16 Penn. St. 129, 133; Messner v. People, 45 N.Y. 1, 5; James v. State, 45 Miss. 572, 579; Crim v. State, 43 Ala. 53, 56; Perry v. State, 43 Ala. 53; State v. Jennings, 24 Kan. 642, 659; Keech v. State, 15 Fla. 591, 609; Grady v. State, 11 Ga. 253, 257; Safford v. The People, 1 Parker's Crim. Rep. 474, 476. But this rule of the common law, as the authorities clearly show, applied to the court of original jurisdiction which pronounced the sentence, and not to an appellate court, which, upon review of the proceedings in the trial court, merely affirms the final judgment — no error having been committed to the prejudice of the accused — without rendering a new judgment.

At common law no judgment for corporal punishment could be pronounced against a man in his absence, and in all capital felonies it was essential that it should appear of record that the defendant was asked before sentence if he had anything to say why it should not be pronounced. Rex v. Harris, 1 Ld. Raym. 267; 2 Hale P.C. 401; Com. Dig. Indictment, N; 2 Hawk. c. 48, § 22; Wharton, Cr. Pl. Pr. §§ 549, 906; Messner v. People, 45 N.Y. 1; Dougherty v. Commonwealth, 69 Penn. St. 286; Croker v. State, 47 Ala. 53; James v. State, 45 Miss. 572; State v. Jennings, 24 Kan. 642; 1 Bish. Cr. Pro. §§ 275, 1293; 1 Chit. Cr. Law, 699.

Describing the common law allocution requirement, the court reasoned that the "practice has its foundation in good sense and common justice" (id. at 477). We subsequently defined the allocution as a "substantial legal right" in Messner v People, stating that the "court has no more power to dispense with this rule or disregard it than it has any other legal rule, which the wisdom and experience of ages has found necessary for the protection of the innocent" (45 NY 1, 7 [1871]). The right was first codified as section 480 of the Code of Criminal Procedure in 1881 and is incorporated in the modern code in CPL 380.50.

The trial court denied Mr. Cahill the right of allocution. ( People v. Nesce, 201 NY 111; People v. Faber, 199 NY 256; Messner v. People, 45 NY 1; People v. McClain, 35 NY2d 483; People ex rel. Miller v. Martin, 1 NY2d 406; Green v. United States, 365 US 301; Couch v. United States, 235 F2d 519; Arbegast v. Board of Educ., 65 NY2d 161; Matter of Mulvaney v. Dubin, 80 AD2d 566, 55 NY2d 668; FGL L Prop. Corp. v. City of Rye, 66 NY2d 111.) XXIX.

(Commentary, supra.) In this State, the right has long been regarded as substantial and was first codified as section 480 of the Code of Criminal Procedure of 1881. Indeed, an early decision of this court held that omission to make the inquiry was ground for reversal of the judgment of conviction (Messner v. People, 45 N.Y. 1). Later cases make it clear, however, that a defendant's sole remedy is to be remanded for resentencing. (People v. Nesce, 201 N.Y. 111, 114; People v. Craig, 295 N.Y. 116, 120.)

( People v. Sullivan, 3 N.Y.2d 196, 198.) The requirement that a defendant be asked prior to sentencing "whether he have any legal cause to show, why judgment should not be pronounced against him" (Code Crim. Pro., § 480) is, as this court has stated on numerous occasions, a substantial legal right that cannot be waived ( People ex rel. Miller v. Martin, 1 N.Y.2d 406, supra; People v. Nesce, 201 N.Y. 111; Messner v. People, 45 N.Y. 1). The sole relief, however, to which a defendant is entitled is to be remanded to the sentencing court and to be resentenced on his plea of guilty ( People v. Sullivan, 3 N.Y.2d 196, supra; People ex rel. Miller v. Martin, 1 N.Y.2d 406, supra; People v. Craig, 295 N.Y. 116). In People v. Sullivan ( 3 N.Y.2d 196, 199, supra), for instance, we recognized that the court's failure to comply with section 480 did not affect the validity of the judgment of conviction, but merely the validity of the sentence and, therefore, "When an improper sentence is the sole basis of the complaint, no vacatur of the judgment of conviction or adjudication is necessary, since justice may be done by correction of the sentence".

We do not agree that there was even substantial compliance here. As far back as 1871, this court held, in Messner v. People ( 45 N.Y. 1), that the right of a defendant to be asked if he had anything to say why judgment should not be pronounced against him is a "substantial legal right" which can be traced back "from the earliest history of the common law" (p. 5). After reviewing this history in New York and England, the court stated (p. 7): "Indeed this [requirement] may be regarded as a part of the trial, as it is an essential prerequisite to an adjudication of the guilt of the prisoner. The court has no more power to dispense with this rule or disregard it than it has any other legal rule, which the wisdom and experience of the ages has found necessary for the protection of the innocent.

However, the judgment entered, as to each defendant, is defective in that it fails to show that the defendants were asked by the court, if they had anything to say why the sentence of the law should not be pronounced upon them. It was required at common law, and we have adopted the rule here, that before sentence, on a conviction of felony, the prisoner must be interrogated by the court as to whether he has anything to say why the sentence of the law should not be pronounced upon him. 1 Bishop Cr.Pro. § 1118; Crim et al. v. State, 43 Ala. 53; Perry v. State, 43 Ala. 21; Mullen v. State, 45 Ala. 43, 6 Am.Rep. 691; Reynolds v. State, 68 Ala. 502; Spigner v. State, 58 Ala. 421; Ball v. United States, 140 U.S. 118, 129, 11 S.Ct. 761, 35 L.Ed. 377; 1 Chitty's Crim. Law, 669; Messner v. People, 45 N.Y. 1; James v. State, 45 Miss. 572, 579; Grady v. State, 11 Ga. 253, 257; Schwab v. Berggren, 143 U.S. 442, 12 S.Ct. 525, 36 L.Ed. 218. It, therefore, follows that the judgment of conviction, as to each defendant, will stand, and the judgment of the circuit court, as to each defendant, is here affirmed in all respects, except as to that part of the judgment, which pronounces the sentence upon the defendants, without showing that the defendants were first asked by the court if they had anything to say why judgment should not be pronounced on them.

This requirement, found in section 480 of the Code of Criminal Procedure, existed at common law in the cases of felony, and the failure to comply with it is fatal to the judgment. ( Messner v. People, 45 N.Y. 1; People v. Faber, 199 id. 256; People v. Nesce, 201 id. 111.) Section 480, however general in terms, should not be considered as extending the rule to misdemeanors, for by section 473 punishment for a misdemeanor can be imposed in the defendant's absence, and of course if absent he could not be called upon to state a cause why judgment should not be pronounced against him.

Francis v. Weaver, 76 Md. 457, 467, 25 A. 413; Com. v. Gorham, 99 Mass. 420, 422 (quoted in Com. v. Kiley, 150 Mass. 225, 226, 23 N.E. 55; Com. v. Lockwood, 109 Mass. 323, 330, 12 Am. Rep., 699). Blaufus v. People, 69 N.Y. 107, 109, 25 Am. Rep., 148; Schiffer v. Pruden, 64 N.Y. 47, 52; Messner v. People, 45 N.Y. 1, 12 (citing 4 Bl. Comm., 362; Bouvier L. Dict.); State v. Alexander, 76 N.C. 231, 232, 22 Am. Rep., 675 (quoted in Ex parte Brown, 68 Cal. 176, 180, 8 P. 829). Wilmoth v. Hensel, 151 Pa. St., 200, 25 A. 86, 91, 31 Am. St. Rep., 738 (citing Smith v. Com., 14 Serg. R. (Pa.), 69); White v. Com., 79 Va. 611, 615 (quoting 1 Bishop Cr. L., sec. 348); Hartley v. Henretta, 35 W. Va. 222, 227, 13 S.E. 375 (quoting Bouvier L. Dict.); United States v. Watkinds, 6 Fed. 152, 158, 7 Sawy. 85 (quoting Bishop Stat. Cr., sec. 348).