
    SUPREME COURT—CHAMBERS—MONROE CO.,
    Oct., 1908.
    THE PEOPLE ex rel. FRED COSGRIFF, REL., v. WILLIAM H. CRAIG, ETC.
    (60 Misc. 529.)
    (1). Petit Larceny—Second Offense—Police Court of Rochester.
    Petit larceny charged as a second offense is still petit larceny, though the fact of defendant’s prior conviction authorizes the court to Impose a more severe sentence than could be imposed upon the first conviction.
    The police court of the city of Rochester has exclusive jurisdiction to try a defendant charged with petit larceny as a second offense, unless the case is removed to the grand jury under section 57 of the Code of Criminal Procedure.
    (2.) Same.
    Upon conviction in the police court, the defendant may, under section 688 of the Penal Code, be sentenced to the Monroe county penitentiary for a term of from one to two years.
    Where, in such case, the court held defendant to await the action of the grand jury, upon the assumption that petit larceny charged as a second offense is a felony, defendant is entitled to be discharged on habeas corpus.
    Motion for discharge of relator on return of writ of habeas corpus.
    
      George S. Van Schaick, for relator.
    
      Charles B. Bechtold, Assistant District Attorney, for respondent.
   Sutherland, J.:

The relator was brought before the police justice of Rochester, charged with having committed petit larceny in the city of Rochester as a second offense. The magistrate held the relator to await the action of the grand jury, whereupon he obtained a writ of habeas corpus and now moves for his discharge upon the ground that the crime charged against him is only a misdemeanor, and that the police court of the city, under the revised charter passed in 1907, has exclusive jurisdiction to try all cases of misdemeanor committed in said city by persons brought before said magistrate charged with such offense. Laws of 1907, chap. 755, § 468.

The action of the police justice in holding the relator for the grand jury is defended on the assumption that petit larceny charged as a second offense is a felony. If it is a felony, then the relator can be punished therefor only after indictment, and the action of the police justice was right. If it is a misdemeanor, the relator, having been brought before the police justice charged with the offense, can be tried only in the police court, unless the case is removed to the grand jury on motion of the accused under section 57 of the Code of Criminal Procedure.

In my opinion the offense charged against the relator is a misdemeanor. Section 535 of the Penal Code declares that “ petit larceny is a misdemeanor.” Petit larceny as a second offense is still petit larceny, although the circumstance of a prior conviction gives the court authority to impose a more severe penalty than could be imposed upon the first conviction. Grand larceny in the first degree is defined by section 530, Penal Code; in the second degree by section 531; and then section 532 says: “ Every other larceny is petit larceny.” Petit larceny charged as a second offense was a felony under the Revised Statutes from 1828 until the adoption of the Penal Code in 1881, because it was punishable by imprisonment for a term not exceeding five years; and the State prison was designated in the statute as the place of confinement. R. S., pt. 4, chap. 1, tit. 7, § 9. Petit larceny, first offense, was not expressly defined as a misdemeanor under the Revised Statutes, although that was the grade of the offense, it being punishable by imprisonment in a jail or penitentiary, and not in a State prison. E. S., pt. 4, chap. 1, tit. 6, § 1. On the adoption of the Penal •Code, petit larceny was expressly declared to be a misdemeanor (§ 535), and the punishment for petit larceny, second offense, was directed by section 688 to be for a ternunot less than the longest term nor more than twice the longest term possible upon a first conviction; but the place of imprisonment was not pointed out. And ever since that time, it has been lawful for a court of competent jurisdiction to commit one convicted of petit larceny as a second offense for the term prescribed by section 688 to the appropriate penitentiary; and the police court of Eochester, upon conviction of an offender accused of petit larceny charged as a second offense, may now commit the defendant to the Monroe County Penitentiary for the term of •two years. Laws of 1907, chap. 755, §§ 476, 477.

Under the former charter of the city of Eochester, as .amended by chapter 204 of the Laws of 1893, and again by ■chapter 784 of the Laws of 1897, it was provided that the police court should have jurisdiction to try persons accused of petit larceny as a second offense, thus affording legislative construction of the most direct, kind that the offense is a misdemeanor. This particular clause was omitted from the revision of the city charter made by the Legislature in 1907.

The contention that petit larceny charged as a second offense is a felony is based upon sections 5, 688 and 704 of the Penal Code. Section 5 of the Penal Code defines a felony as “ a crime which is or may be punishable by either 1. Death; or 2. imprisonment' in a State prison.” Section 704 of the Penal •Code states that “ Where a person is convicted of a crime, for which the punishment inflicted is imprisonment for a term ■ exceeding one year, or is sentenced to imprisonment for such a term, the imprisonment must be inflicted by confinement at hard labor in a State prison. But this and the two last sec-lions shall not apply to a case where special provision is made jby statute as to the punishment for any particular offense or class of offenses or offenders, nor to the cases specified in sections six hundred and ninety-eight, six hundred and ninety-nine, seven hundred and seven hundred and one;” and section ■688 declares that the punishment to be inflicted upon a person convicted of petit larceny as a second offense must be “ for a term not less than the longest term, nor more than twice the longest term, prescribed upon a first conviction;” and, for a first conviction of petit larceny in the police court of Rochester, the offender can be imprisoned in the Monroe County Penitentiary for a term not exceeding one year. Applying section 688 to that situation, a person convicted of petit larceny, second offense, in the police court, would be subject to imprisonment for a term which must be at least one year, and may be two years; and it is argued that section 704 just quoted makes it necessary that such imprisonment be in a State prison, and that, therefore, petit larceny as a second offense must be a felony.

This reasoning I believe to be unsound. Certainly,, if the crime can be punished by imprisonment in a State prison, it is .a felony. (People v. Lyon, 99 N. Y. 210.) But section 704 can have no application to offenses which are expressly defined as misdemeanors only. If, in the statute declaring a certain act to be criminal, and punishable upon conviction by imprisonment for a year or more, the offense is not denominated as a misdemeanor or a felony, it is necessarily a felony because of the liability to imprisonment in the State prison. (People v. Hughes, 137 N. Y. 30.) But, if the statute which declares the act to be a crime expressly classifies the offense as a misdemeanor, the offender cannot be sent to a State prison, no matter how long a term of imprisonment can be imposed; and, in such a case, section 704 of the Penal Code has no application. (Mairs v. Baltimore & Ohio R. R. Co., 73 App. Div. 273.)

It may have been supposed that the penitentiary could not receive a person sentenced for more than a year; but a careful search of the various statutes on the subject discloses no such disability. The authority of courts of record to sentence persons convicted of felony to the various penitentiaries of the State for terms not exceeding five years, conferred by chapter 571 of the Laws of 1875, was taken away by the repeal of that statute by chapter 600 of the Laws of 1899. That legislation however, did not affect the sentencing of prisoners to the penitentiaries for misdemeanor. The original act for the construction of a workhouse in the county of Monroe (Laws of 1853, chap. 279), put no limitation upon the time of imprisonment of convicts therein; and section 13 of that original act provided as follows: “ Any person convicted and sentenced to said workhouse, by any court or magistrate in the county of Monroe, shall be liable, upon a second conviction for the same offense, to confinement in said workhouse for double the term of the former sentence of such person.” By chapter 188 of the Laws of 1858, the name of the workhouse was changed to the Monroe County Penitentiary; and the penitentiary was made the place of imprisonment of all persons convicted in Monroe county, who otherwise would be confined in the county jail. In none of the subsequent amendments affecting the Monroe Oounty Penitentiary has the length of time of detention of prisoners sentenced for misdemeanors been limited. The General Penitentiary Law (Laws of 1859^ chap. 289, as am’d by iaws of 1874, chap. 209), puts no restriction upon the maximum term of imprisonment of persons convicted of misdemeanor. Accordingly there seems to be no difficulty in the way of carrying out the full purpose of section 688 of the Penal Code upon a conviction of petit larceny, second offense, in the police court of Rochester, and the imposition of a sentence to the Monroe County Penitentiary for a term of from one to two-years’ duration, as fixed by the judgment of the court.

I conclude, therefore, that the police justice had no jurisdiction to hold the relator for the grand jury, and that, accordingly, he must be discharged from his present imprisonment.

Relator discharged.  