December 29, 1911.
Charles B. McLaughlin, for the appellant.
Robert S. Johnstone, for the respondent.
The defendant was indicted for "feloniously and extorsively" attempting "feloniously and extorsively to obtain" money. He was convicted on February 25, 1910, and sentenced to State's prison for not less than three, nor more than five years and six months. It is conceded that the threat by which the defendant undertook to extort money was verbal, and that the defendant was guilty of a misdemeanor only. ( People ex rel. Perry v. Gillette, 200 N.Y. 275.) Where the error is after the verdict it does not affect the conviction, and the proper procedure is to resentence the defendant. ( People v. Nesce, 201 N.Y. 111.) Although the indictment in this case uses the word "feloniously," it does not charge the making of a threat in writing. But even if it be considered as charging a felony, a conviction for the lesser offense would be permissible. ( People v. Miller, 143 App. Div. 251. ) The jurisdiction of the Court of Special Sessions in the city of New York is governed by article 3 of chapter 659 of the Laws of 1910. While the Court of Special Sessions has in the first instance exclusive jurisdiction to hear and determine charges of misdemeanor, it is divested of jurisdiction by the presentment of an indictment against the same person for the same offense before the commencement of the trial of the person accused. (Laws of 1910, chap. 659, § 31.) Those provisions were a re-enactment of similar provisions of the charter. (See Laws of 1901, chap. 466, § 1409.)
Section 543 of the Code of Criminal Procedure provides: "Upon hearing the appeal, the appellate court may, in cases where an erroneous judgment has been entered upon a lawful verdict, or finding of fact, correct the judgment to conform to the judgment or finding." The proper procedure under that section would be to direct that the defendant be brought before this court for judgment on his conviction. ( People v. Griffin, 27 Hun, 595; People v. Bretton, 144 App. Div. 282.) However, we are informed by the district attorney that the defendant has already served over a year in State's prison under the erroneous judgment. For that reason the court will not impose an additional sentence. As the conviction is of a misdemeanor, it is not important, as it would be in the case of felony, that there be a judgment of conviction.
Wherefore the ends of justice will be accomplished in this case by a reversal of the judgment and the discharge of the defendant.
INGRAHAM, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Judgment reversed and defendant discharged. Order to be settled on notice.