People ex rel. Wilkinson v. McMann

Appeal from an order of the 'Clinton County Court which dismissed a writ of habeas corpus. On July 15, 1949 relator was convicted in Monroe County Court of grand larceny in the first degree. Sentence was deferred until July 28, 1949, when sentence was suspended. On February 1, 1950 relator was returned to court, the suspension of sentence was revoked and he was sentenced to six months imprisonment in the Monroe County Penitentiary. Relator sought in the court below to vitiate this conviction (used as a part basis for subsequent multiple offender sentences) on the ground of failure to comply with sections 472, 4801 and 482 of the Code of Criminal Procedure on February 1, 1950, the date when suspension of sentence was revoked. Relator concedes that there was a compliance with section 480 when he appeared for sentence on July 28, 1949. The record clearly shows a compliance with sections 472 and 482 on that date. These sections relate solely to “judgment day” which is the day a defendant appears for sentence, and no other. (People ex rel. Miller v. Martin, 1 N Y 2d 406.) There is no requirement in the Code of Criminal Procedure that the process be repeated on proceedings pertaining to the judgment subsequently. Order unanimously affirmed. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.