Opinion
June 25, 1920.
Ralph E. Hemstreet, Assistant District Attorney, for the motion.
I. Erlich Wolfe, opposed.
We concluded that the conviction was right, but that the sentence was not lawful. We, therefore, proceeded, in the words of the statute, to "correct the judgment to conform to the judgment or finding." (Code Crim. Proc. § 543.) But we were not required to reverse the judgment, as a reading of this statute shows; for after this provision for correction the statute reads that " in all other cases" there must be reversal or affirmance or reduction. There was no need of reversal. The erroneous sentence does not affect the rightful conviction. ( People ex rel. Devoe v. Kelly, 97 N.Y. 215.)
Inasmuch as we cited People v. Griffin (27 Hun, 595), both in the case at bar and in People v. Bretton ( 144 App. Div. 282), the learned district attorney now argues that Griffin's case sustains his proposition that the setting aside of the sentence was a reversal of the judgment, because in Griffin's case, to quote his language, "the judgment was reversed because of the illegality of the sentence." It is true that the court in Griffin's case say, "The judgment upon the defendant Griffin must be reversed;" but this statement follows: "and the prisoner brought before this court for judgment on his conviction." Moreover, the decision of the court is: "Conviction and judgment affirmed. Sentence as to Griffin set aside, and defendant Griffin to be brought before the court for sentence as for an assault and battery only."
Thus it is plain that the "judgment" referred to by the court, which was disturbed as the "judgment upon the defendant Griffin," was the sentence. Such use of that word was entirely proper. ( Manke v. People, 74 N.Y. 424; Freem. Judg. [4th ed.] § 2.) In this very section 543 we find such use of the word "judgment" when it provides that an "erroneous judgment" may be corrected to conform to the judgment or finding. There is like use of the word in People v. Bauer (37 Hun, 408), where the court say in its opinion that the judgment was reversed "for error in the sentence." But the "judgment" was affirmed.
The proceeding followed in the case at bar is directly in conformity to People v. Bretton ( supra) and People v. Griffin ( supra), and is directly prescribed and authorized by the said section 543 of the Code of Criminal Procedure.
It does not appear that the question presented in the case at bar was ever directly passed upon by this court, or that it was urged upon it in the cases now called to our attention for the first time, save perhaps by a single sentence in the points submitted in one of the cases.
If the punishment prescribed is not sufficient, the remedy lies in an application to the Legislature. The court is of opinion that there is not such doubt as to the correctness of its construction as justifies the allowance of an appeal under the provisions of article 6, section 9, of the Constitution.
The motion is in all respects denied.
JENKS, P.J., RICH, PUTNAM, BLACKMAR and KELLY, JJ., concur.
Motion denied.