Opinion
November 16, 1955.
Appeal from County Court of Clinton County.
Present — Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ.
Appellant was convicted in Kings County on October 19, 1943, of the crime of murder in the second degree, and sentenced to a term in prison from a minimum of fifty years to life. Appellant was thirteen years of age at the time the crime was committed, and fourteen years of age when sentenced. It is without dispute that in 1943, when appellant was sentenced, a defendant over the age of seven years could legally be tried and sentenced for murder. In 1949 the law was changed by legislative enactment so that a child under the age of fifteen years must be dealt with as a juvenile delinquent. Appellant contends that the 1949 law is retroactive and should be applied to his case. The identical question has been decided adversely to appellant in a coram nobis proceeding. ( People v. Downie, 205 Misc. 643.) The facts and specific statutes involved are set forth in detail in the opinion in that case, and it is unnecessary to repeat them here. We note that County Judge SOBEL reluctantly held that the more humane law of 1949 was not retroactive, and, were we to pass on the merits we would probably be required to reach the same result. However, the question of law presented by appellant may not be raised by way of a writ of habeas corpus. It is clear and undisputed that appellant is imprisoned by virtue of the final judgment of a court of competent jurisdiction which had jurisdiction of the person and jurisdiction of the offense under the law as it existed at the time. Under these circumstances habeas corpus is not a proper remedy. ( People ex rel. Sedlak v. Foster, 299 N.Y. 291; Matter of Morhous v. New York Supreme Court, 293 N.Y. 131; People ex rel. Lee v. Jackson, 285 App. Div. 33, affd. 309 N.Y. 676.) While we are without power to afford any relief to appellant, we are constrained to observe that a minimum sentence of fifty years imposed upon a boy of fourteen, irrespective of the nature of his crime, seems inconceivable in modern times. Such a minimum even deprives the parole board of power to act, regardless of the future development of the boy. We note from the opinion in People v. Downie ( supra, p. 645) that "this case has been presented to the Governor for executive clemency and might be considered if the prisoner's conduct in prison had warranted such consideration". Order unanimously affirmed.