
    The People of the State of New York, Respondent, v. Thomas Finucan, Jr., Appellant.
    Second Department,
    May 29, 1912.
    Crime — validity of commitment — assault, third degree — conviction by Court of Special Sessions — correction on appeal of error in place of commitment — discontinuance' of appeal to County Court.
    Where a conviction itself is valid, any invalidity in the commitment as to the place of detention or the time of imprisonment does not invalidate the conviction and entitle the prisoner to a discharge.
    Hence, where a defendant was duly' convicted of assault in the third degree by the Court of Special Sessions in the county of Nassau, and a commitment issued directing his imprisonment in the Kings County Penitentiary, and he was thereupon taken to the New York County Penitentiary and therein imprisoned because the Kings County Penitentiary-had been abolished by chapter 173 of the Laws of 1905 and all the prisoners therein transferred to the New York Penitentiary, the County Court of Nassau county had authority on appeal to modify the judgment by correcting the technical defect in relation to commitment in the Kings County Penitentiary.
    The County Court, after the argument of an appeal by a defendant duly convicted by the Court of Special Sessions of assault in the third degree and while waiting for the submission of briefs, may, in its discretion, deny the application of the defendant to discontinue the appeal when such application is made in order that the defendant may attack the validity of his commitment on habeas corpus. •
    The principles relating to the right of a plaintiff in a civil action to discontinue do not apply in a criminal case.
    Appeal by the defendant, Thomas Finucan, Jr., from a judgment of the County Court of Nassau county, entered in the office of the clerk of said -county on the 13th day of November, 1911, modifying and affirming a judgment rendered against said defendant on the 1th day of October, 1911, by a Court of Special Sessions in the town of Hempstead, Nassau county, New York, convicting him of the crime of assault in the third degree, with notice of - an intention to bring up for review an order of said County Court, entered in the office of the clerk of said county. on the 13th day of November, 1911, denying the defendant’s motion to withdraw his appeal to the County Court of Nassau county and to discontinue further proceedings therein.
    
      Martin T. Manton, for the appellant.
    
      Charles N. Wysong, District Attorney [Charles T. McCarthy, Assistant District Attorney, with him on the brief], for the respondent.
   Carr, J.:

On September 18,1911, an information was filed against the defendant in the Court of Special Sessions, in the county of Nassau, charging him with a violation of section 244 of the Penal Law, in having committed an assault in the third degree upon one Mary Benerlein. A warrant was issued for his arrest, and on being arraigned before the magistrate he pleaded not guilty and demanded a jury trial. On the trial the jury rendered a verdict of guilty, and oil said verdict the magistrate made a certificate of conviction, whereby he adjudged that the defendant be imprisoned in the Kings County Penitentiary for six months. A commitment was issued directing the imprisonment of the defendant in said Kings County Penitentiary, and he was thereupon taken to the New York County Penitentiary and therein impris'oned. He sued out a writ of habeas corpus returnable in New York county, on the claim that his detention in the New York County Penitentiary was absolutely unlawful. It appears that there was a hearing on this writ of habeas corpus, and that a decision has not been made thereon. In the meantime the defendant appealed to the County Court of Nassau county, and was admitted to bail by said County Court pending the hearing and determination of said appeal. The appeal came on for argument, and the County Court granted leave to the defendant’s, counsel and the district attorney to submit briefs, and to. have a further and final argument of the merits of the question involved at a later date. The defendant’s counsel obtained thereafter permission, by stipulation between himself and the district attorney, for an extension of time in which the briefs were to be submitted. Before the expiration of the extended time he obtained an order to show cause from the County Court of Nassau county why he should not be allowed to discontinue the appeal to said court. After a hearing of the motion on the order to show cause it was denied by the County Court, which thereupon proceeded to determine the appeal pending before it, and made an order modifying the judgment of the Court of Special Sessions by directing that the defendant he confined in the New York County Penitentiary for a period of six months. , From the order and judgment of the County Court the defendant now appeals.

It is urged by the defendant that the Court of Special Sessions in Nassau county was without power to commit him for imprisonment in the Kings County Penitentiary. It appears that by chapter 173 of the Laws of 1905 the Kings County Penitentiary was abolished, and all the prisoners therein confined were transferred to the New York City Penitentiary. It was likewise provided in said act that all commitments thereafter to he made for offenses for which defendants might be committed formerly to the Kings County Penitentiary should be made to some other prison, penitentiary or like institution in the city of New York. The provisions of this act were confined in their scope to the counties within the city of New York. By section 2181 of the Penal Law it is provided generally that where a person is convicted of a crime for which the punishment inflicted is imprisonment for a term less than one year the imprisonment must be inflicted by confinement in the county jail. This, however, is not the only statutory provision on this subject, for by section 320 of the Prison Law (Consol. Laws, chap. 43; Laws of 1909, chap. i7) permission is given to the hoards of supervisors of the various counties of this. State to enter into agreements with the board of supervisors of a county having a penitentiary therein to receive and keep in such penitentiary any person who may be sentenced to confinement therein by any court or magistrate in any of said counties for any term not less than sixty days.

Section 2196 of the Penal Law regulates the manner of detention of prisoners committed to penitentiaries outside of the county in which the prisoner was convicted where the place of detention is provided for under the provisions of section 320 of the Prison Law. In the case now on appeal there was no. question of the validity of the conviction. The defendant, however, assails the validity of the sentence and the commitment on the ground that it specifies a place of detention which no longer existed under the provisions of law. It seems to us that this defect in the certificate of conviction and in the commitment was but technical. By section 764 of the Code of Criminal Procedure the County Court of Nassau county, on hearing and determining the appeal taken to it, had authority to modify the judgment of the Court of Special Sessions by correcting the technical defect in relation to the Kings County Penitentiary. There is no claim here that there was not a contract between the county of Nassau and the city of New York for the reception and detention of prisoners committed by the Court of Special Sessions in Nassau county under the provisions of section 320 of the Prison Law. As has been pointed out in People ex rel. Devoe v. Kelly (97 N. Y. 212), where the conviction itself is valid, any invalidity in the commitment as to the place of detention or the time of imprisonment does not invalidate the conviction and thus entitle the prisoner to his discharge. It is claimed, however, by the appellant that when the County Court denied him leave to discontinue his appeal to it, he was refused unlawfully such a substantial right as should invalidate the judgment of modification and affirmance subsequently made against him by the County Court. To support this proposition many authorities are cited in relation to the right of a plaintiff in a civil action to discontinue. The principles applicable are not the same in a criminal case. In a private action the questions involved are between the parties to the action alone, and do not concern the body public. Here the defendant had been admitted to bail by the County Court, and the argument on his appeal heard, and decision thereof reserved simply in order to enable the parties to present briefs as to their respective contentions as to the law. When the defendant applied for an order permitting him to discontinue his appeal to the County Court he stated in his motion papers frankly that his purpose was to withdraw his appeal in order that he might attack on habeas corpus the validity of his commitment, We think that under such circumstances the County Court had the discretion to deny such application for leave to discontinue, and that its discretion was exercised properly under the circumstances presented to it.

The judgment of the County Court should, therefore, be affirmed.

Jenks, P. J., Thomas, Woodward and Rich, JJ., concurred.

Judgment of conviction of the County Court of Nassau county affirmed.  