Opinion
May 16, 1960
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
Appeal from an order of County Court, Clinton County, which dismissed a writ of habeas corpus. By writ of habeas corpus relator contends that the New York County Court of General Sessions was without jurisdiction in sentencing him January 29, 1940 to from 10 to 30 years for robbery, first degree, because of a failure to comply with section 480 of the Code of Criminal Procedure. Relator contends that the stenographic record shows that the question "whether he has any legal cause to show why judgment should not be pronounced against him" was not properly asked and that relator did not have opportunity to answer the question that was asked. The question actually asked of relator was: "what have you now to say why sentence of the Court should not be pronounced against you according to law?" This question not only embraced the full substance of the statutory question, but was broader and gave defendant a wider opportunity to express reasons. The statute says no "legal cause"; the question asked as to "what have you now to say why" sentence should not be pronounced, permitted a statement unlimited in scope. Although the stenographic record says nothing about relator's answer and shows that after the question was asked the court asked relator's counsel if he had "any motions to make" it does not show that this was asked without opportunity of relator to answer; and, of course, he was not required to answer. The clerk's record for January 29, 1940 contains this notation: "The defendant, having nothing further to say" judgment was directed. On the whole record we must conclude that the proceedings were not jurisdictionally defective. Order dismissing writ unanimously affirmed, without costs.