Opinion
December 3, 1970
Appeal from the Erie Supreme Court.
Present — Goldman, P.J., Del Vecchio, Witmer, Gabrielli and Bastow, JJ.
Judgment unanimously affirmed. Order of August 31, 1970 of Erie County Supreme Court purporting to modify sentence imposed on defendant on April 23, 1968 unanimously vacated and sentence imposed on April 23, 1968, reinstated. Memorandum: Following a jury trial in Erie County Supreme Court, defendant was convicted of unlawful possession of a loaded firearm (former Penal Law, § 1897, subd. 2). On April 23, 1968 the court sentenced appellant to Elmira Reformatory but granted a certificate of reasonable doubt. (Code Crim. Pro., § 527.) The provision of section 529 of the same statute — mandating the surrender of defendant if the appeal is not argued within 120 days — was ignored for more than two years by both prosecutor and retained defense counsel. (Cf. People v. Gorney, 18 A.D.2d 964.) On June 30, 1970 upon application of appellant this court made an order enlarging his time to argue the appeal until the September 1970 Term. None of the facts hereinafter related were revealed upon that application. It appears that five days before obtaining a show cause order from a member of this court for the enlargement of time and on June 18, 1970 appellant's counsel obtained an order from a Justice of the Supreme Court, who was not the sentencing Judge, requiring the District Attorney to show cause why the sentence should not be modified. Following a hearing and on August 31, 1970 the judgment was modified to the extent of placing defendant on probation for three years. So far as the record reveals no supplemental probation report was obtained. Relief was granted on the self-serving declarations of appellant, his brother, his counsel, and a one sentence affidavit of his employer. Initially, we recognize that the prohibition against the change of a sentence is effective only after imprisonment has commenced (Code Crim. Pro., § 482, subd. 3) and a sentence commences when a defendant is received in a penal institution (Correction Law, § 231). This question aside, however, judicial propriety should have prompted the Trial Judge to relegate appellant to an application to this court for such relief on the argument of the appeal. The reliance of appellant on People v. Harcq ( 292 N.Y. 321) and People ex rel. Woodin v. Ottaway ( 247 N.Y. 493) is misplaced. As therein pointed out, the extent of the relief an appellate court may grant is limited to a reduction of the sentence to one not lighter than the minimum provided by law. (Code Crim. Pro., § 543.) But, as was stated in People v. Zuckerman ( 5 N.Y.2d 401), no minimum is fixed by section 1935 of the Penal Law which prescribes the punishment for violations of section 1897 — the statute with which we are concerned. The court concluded (p. 403) that "appellant had the right to have the Appellate Division review the refusal to suspend sentence or the execution of sentence." (See, also, People v. Silver, 10 A.D.2d 274, 275.) Lastly, we conclude that the action of the trial court upon the facts before it and taken on the eve of the argument of the appeal (after a delay of two years) was contrary to the doctrine that one Judge of co-ordinate jurisdiction should not modify a judgment made by a colleague of equal rank in the same case. The remedy is by appropriate appellate review (cf. Matter of Haas, 33 A.D.2d 1, 7-8). We find no ground upon which to disturb the sentence originally imposed.