Opinion
May 15, 1908.
Robert C. Taylor and Robert S. Johnstone, for the plaintiff.
William Tazewell Fox, for the defendant.
The motion is made upon the ground that the determination of the court convicting the defendant and suspending sentence without judgment is not appealable. In People v. Markham ( 114 App. Div. 387) the court held, in July, 1906, that no appeal lies from a conviction on which sentence is suspended, because the right of appeal is statutory, and that appeals from the Court of Special Sessions in Greater New York were only authorized by section 1414 of the Greater New York charter in cases where an appeal lies from a judgment in an action prosecuted by indictment, which was regulated by section 517 of the Code of Criminal Procedure, which limited the appeal to an appeal from a judgment of conviction after indictment. At that time section 750 of the Code of Criminal Procedure, which was quoted in the opinion of this court as if applicable to appeals from the Courts of Special Sessions in Greater New York, provided as follows: "An appeal may be allowed for an erroneous decision or determination of law or fact upon the trial." The Legislature, at its next session after that decision was announced, amended said section 750 of the Code of Criminal Procedure by chapter 685 of the Laws of 1907, by adding thereto the following clause, to wit: "and for the purposes of an appeal in all cases now pending or hereafter brought, a conviction for a criminal offense shall be deemed a final judgment, although sentence shall have been suspended by the court in which the trial was had, or otherwise suspended or stayed."
It is now urged in behalf of the motion that this amendment only applies to appeals from Courts of Special Sessions and other inferior courts of criminal jurisdiction authorized to be taken to the County Court, and does not apply to appeals from Courts of Special Sessions in Greater New York, which may only be taken to the Supreme Court. (Greater N.Y. Charter [Laws of 1901, chap. 466], § 1414; Code Crim. Proc. § 517.)
It is quite probable that the author of the amendment to section 750 of the Code of Criminal Procedure, herein quoted, intended to change the rule as stated in People v. Markham ( supra), when a defendant convicted of a crime is deprived of the right to review the conviction because the court, perhaps of its own motion or on the recommendation of the prosecuting officer and without the consent of the defendant, saw fit to suspend sentence, instead of pronouncing judgment on the conviction; and it may well be that he fell into error in deeming that this would be effected by the amendment to said section 750 owing to the inadvertent reference to that section in the opinion of this court in the Markham case as if applicable to such appeals. It is to be borne in mind, however, that by no reasonable construction could the amendment be made applicable to that large class of convictions on indictments where sentences are suspended, which are clearly left, as before the amendment, without the right to the defendant of an appeal. The amendment, therefore, in no view shows a legislative intent to change the rule in all cases, and it must be construed as applicable only to those appeals authorized by title 3 of part 5 of the Code of Criminal Procedure, in which section 750 of the Code of Criminal Procedure is found and to which it related before the amendment. That title still relates, as is shown by section 751, to some appeals from convictions in inferior courts in the county of New York. It is clear, however, that it only relates to such appeals as are authorized to be taken to the County Court. Of course, there is no County Court in the county of New York; but there is a Court of General Sessions, and by virtue of the provisions of section 961 of the Code of Criminal Procedure, that is deemed the County Court for the purposes of the provisions of that Code. Section 1404 of the Greater New York charter preserves and continues the right of appeal from judgments and other determinations of city magistrates to the Court of General Sessions of the Peace. It is thus evident that said title 3 of part 5 of the Code of Criminal Procedure applies to and regulates appeals to the Court of General Sessions from determinations made by the city magistrates. It appears, however, that section 1414 of the Greater New York charter authorizes appeals from the courts of Special Sessions to the Supreme Court only in the same manner that appeals to this court are taken and heard from judgments on conviction after indictment, which are regulated by section 517 of the Code of Criminal Procedure. There is no apparent reason why there should be a right of appeal to this court from a suspension of sentence in the Court of Special Sessions, and no such right where sentence is suspended in the Court of General Sessions, which, as already observed, can on no theory be covered by the amendment under consideration. The conclusion is, therefore, inevitable that the amendment confers no right of appeal from a suspended sentence in the Court of Special Sessions, and the scope of the amendment must be confined to appeals authorized to be taken to the County Court and to the Court of General Sessions.
It follows that the motion to dismiss the appeal should be granted.
PATTERSON, P.J., INGRAHAM, CLARKE and HOUGHTON, JJ., concurred.
Motion granted. Settle order on notice.