Opinion
May 5, 1916.
K. Henry Rosenberg [ Abraham J. Halprin with him on the brief], for the appellant.
Ralph E. Hemstreet, Assistant District Attorney [ James C. Cropsey, District Attorney, with him on the brief], for the respondent.
The County Court of Kings county had imposed a sentence of one year in the New York County Penitentiary, whereas the statutes required a sentence of at least five years in a State prison. (Penal Law, §§ 1308, 1941.) Thereafter, upon application of the district attorney of Kings county, the Special Term of the Supreme Court issued a peremptory writ of mandamus to the County Court of Kings county to impose a sentence upon the defendant that was prescribed by the said statutes. The mandamus was obeyed, and the defendant appeals from the said order of the Special Term.
If the County Court, when it perceived its error, had expunged the first sentence and pronounced a sentence required by law, there could have been no legal objection to such procedure. ( Miller v. Finkle, 1 Park. Cr. Rep. 374, cited and approved in Ex parte Lange, 18 Wall. 174; People v. Trimble, 60 Hun, 364, 367; affd., 131 N.Y. 118.) That the County Court refused or neglected so to do is but an incident. So far as this record shows, there was no issue of fact raised at the Special Term, and there was nothing before the court save the condition heretofore stated. We think that the writ could issue and that the order should be affirmed. ( People ex rel. Benton v. Court of Sessions, 66 Hun, 550; People ex rel. Williams v. Court of Sessions, 1 Park. Cr. Rep. 369; Matter of Runk, 200 N.Y. 447; People v. Superior Court of N.Y., 5 Wend. 115, 127.)
STAPLETON, MILLS, RICH and PUTNAM, JJ., concurred.
Order affirmed.