
    SUPREME COURT—SPECIAL TERM—ERIE CO.,
    June, 1916.
    THE PEOPLE EX REL. NELLIE SCHINDLER v. HARRY KAISER, KEEPER OF THE ERIE COUNTY PENITENTIARY.
    (95 Misc. 681.)
    Habeas corpus—Writ of—When denied—Liquor Tax Law.
    Where on conviction in a County Court of a violation of the Liquor Tax Law the relator was sentenced to a term of one year in the penitentiary and to pay a fine, which was paid the same day, and the execution of the sentence of imprisonment suspended, and more than six months thereafter relator was arrested upon a warrant issued by the county judge and brought before the court which made an order that the order theretofore made suspending the execution of the sentence of imprisonment be revoked and relator committed to the penitentiary to serve for a period of one year as directed by the original sentence, and it appears that the course pursued by the court wholly ignored the whole scheme pf probation as outlined in the statute, it must be concluded that relator was given the benefit of only a common-law suspension of the execution of the sentence and not one under the statute, and that upon revocation of said sentence it only remained to carry out the terms of the original judgment of conviction and that relator’s application on habeas corpus for release from imprisonment, on the ground that the term thereof had expired, must be denied and the writ dismissed.
    Proceeding by habeas corpus for the release of the relator from imprisonment on the ground that the term of her imprisonment has expired.
    
      Frank A. Abbott, for relator.
    
      
      Burt A. Duquette, District Attorney of Niagara county, opposed.
   Wheeler, J.:

The relator was convicted on her plea of guilty at a term of the Niagara County Court on the 29th day of May, 1915, of a violation of the Liquor Tax Law of the state of New York, and was therefore sentenced “ To be confined in the Erie County Penitentiary for the period of one year, and to pay a fine of two hundred dollars.”

The judgment of conviction contained this further entry or words: “ Execution of the penitentiary sentence is suspended. Fine paid May 29, 1915.”

The relator was released from custody, but was again on the 6th day of January, 1916, arrested upon a warrant issued by the county judge, and brought before the court and on the 8th day of January, 1916, the County Court made an order “ that the order heretofore made by this Court suspending the execution of the penitentiary sentence as aforesaid be and the same is revoked, and said defendant, Nellie Schindler, is hereby committed to the Erie County Penitentiary to serve for the period of one year as directed by said sentence so pronouncd as aforesaid, upon judgment of conviction herein.”

The order recites that the County Court was moved to take this action owing to certain alleged violations of the Penal Law of the state.

The relator was accordingly incarcerated in the penitentiary, and there is no question as to the power of the court to suspend the execution of a sentence after it has been passed. People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288; People v. Webster, 14 Misc. Rep. 617; People v. Goodrich, 149 N. Y. Supp. 406.

This power it is said exists at common law arising from the inherent power of the court over its own decrees. People v. Goodrich, 149 N. Y. Supp. 483; People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288.

In addition to the common law right certain rights are expressly conferred by statute to he found in section 483 of the Code of Criminal Procedure. An examination of this section and of its subdivisions shows that the precise case here presented is not covered. Subdivision 1 of the section relates to the suspending of sentence rather than to the suspension of the execution of the sentence after it has been pronounced. Section 2 relates to cases where “ the judgment is to pay a fine and that the defendant be imprisoned until it is paid ” which is different from one where the sentence provides both for the payment of a fine and imprisonment. Section 3 relates to the transfer of the supervision of the probationer from one county to another. Then comes subdivision 4 of the section which has been quoted at length:

“ 4. At any time during the probationary term of a person, convicted and released on probation in accordance with the provisions of this section, the court before which, or the justice before whom, the person so convicted was convicted, or his successor, or the court to which the person on probation is transferred as hereinabove provided, may in its or his discretion, revoke and terminate such probation. Upon such revocation and termination, the court may, if the sentence has been suspended, pronounce judgment at any time thereafter within the longest period for which the defendant might have been sentenced, or, if judgment has been pronounced and the execution thereof has been suspended, the court may revoke such suspension, whereupon the judgment shall be in full force and effect for its unexpired term.”

It will be noted this clause provides that at any time during the probationary term of a person “ released on probation in accordance with the provisions of this section,” the court may “ revoke and terminate such probation ” and upon such revocation “ if the judgment has been pronounced and the execution thereof has been suspended, the court may revolee such suspension whereupon the judgment shall be in, full force and effect for its imexpired term.”

There appears therefore to be good and sufficient reasons why the relator cannot avail herself of this latter provision quoted. First, because the sentence imposed on her was not suspended by virtue of the provisions of section 483, but under the common law power possessed by the court. Second, because the revocation and subsequent procedure of the court prescribed by the section relates only to persons “ released on probation in accordance with the provisions of this section,” which necessarily excludes persons released by the suspension of execution of sentence under the common law power of the court. This is true even though we were to regard the suspension of the execution of the sentence as tantamount to putting the relator on probation. As matter of fact, however, we do not think the relator can be said to have been put on probation during the suspension of the execution of the sentence.

The judgment of conviction and the suspension of its execution makes no mention whatever of any probation of the relator. Indeed the course pursued by the court before whom she was convicted wholly ignores the whole scheme of probation as outlined in our statutes- Section 11A of the Code of Criminal Procedure authorizes the appointment of probation officers, subdivision 2 defines their duties, and subdivision 4 provides that when any court suspends sentence and places a defendant on probation it shall determine the conditions and period of probation.

In a certain sense it probably can be said that any person convicted and by order of the court set at liberty, subject to the right of the court for any reason to revoke its order, is at liberty on probation. We take it, however, that when the word “ probation is used in the statute it has reference to the general scheme of probation established and authorized by statute, where the probationer is expressly made subject to the control, direction and discipline of the court through probation officers or otherwise as prescribed in the statute law.

Subdivision 2 of section 483 also provides that in cases arising under that section the court “ shall place such defendant on probation under the charge and supervision of a probation officer during such suspension.” None of these things were done in the case at bar.

We, therefore, must conclude that the relator was given the benefit of only a common-law suspension of the execution of the sentence, and not one under the statute, and when the suspension was revoked it only remained to carry out the terms of the original judgment providing for a year’s imprisonment.

The writ is, therefore, dismissed and the prisoner remanded to the keeper of the Erie County Penitentiary to be by him retained in custody until the expiration of the year’s imprisonment named in the original judgment.

Order accordingly.  