Opinion
March 9, 1949.
Appeal from St. Lawrence County Court.
Appellant relied upon purported irregularities in the proceedings prior to indictment and refused to participate in the trial, or to allow counsel assigned to him to participate except that at the end of the trial appellant himself made certain requests and exceptions to the court's instructions to the jury. The irregularities before indictment, consisting of the publication of the depositions before the magistrate, did not affect the validity of the indictment or the proceedings after indictment, and the Special Term was justified in denying appellant's motion for a change of venue. The proof upon the trial was uncontradicted. The court imposed the maximum sentence of imprisonment possible for this offense, an indeterminate term with a minimum of five years and a maximum of ten years. (Penal Law, §§ 1295, 2189). Appellant's previous reputation was good; he had never been convicted of crime. The maximum penal sentence for a person of previous good character was of unusual harshness and severity in the case of a first offender. The record indicates a proper case for the exercise of the power on appeal to reduce the sentence, conferred by section 543 of the Code of Criminal Procedure. Appellant has served two years, eight months and eleven days as of March 9, 1949. The judgment is modified on the law and the facts to reduce the sentence imposed to read: It is adjudged that the defendant, James H. Davies, be confined in Clinton Prison, Dannemora, New York, for an indeterminate sentence, the minimum of which shall not be less than one year, and the maximum of which shall not be more than two years, eight months and fifteen days; and as so modified affirmed. Foster, P.J., Heffernan, Brewster, Santry and Bergan, JJ., concur.