
    The People, Resp’ts, v. Philo Baldwin, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 7, 1889.)
    
    Practice—Appeal—Power oe court to modify sesterce.
    Where a defendant pleads guilty, on an appeal to the court of sessions, he has a right to have that court exercise its discretion as to the sentence.
    Appeal from an order of the court of sessions of Montgomery county, dismissing an appeal from a judgment of a court of special sessions, held by the recorder of the city of Amsterdam, convicting the appellant of assault in the third degree.
    On the 29th day of September, 1888, a complaint was made to the recorder charging the defendant with the crime of assault in the third degree, and a warrant for his arrest was thereupon issued.
    On the same day the defendant was arrested and brought before the recorder. Counsel for the defendant was present. The information was read and the defendant was required to plead. He plead not guilty, and at his request an adjournment was taken to the 2d day of October, 1888. On the adjourned" day defendant appeared with counsel and asked leave to withdraw his former plea of not guilty. Leave was granted and the defendant withdrew his plea of not guilty and plead guilty. He was thereupon sentenced to be confined in the common jail of Montgomery county for thirty days, and. to paya fine of fifty dollars. From this judgment an appeal to the court of sessions was allowed by the county judge. At the next sessions a motion was made by the district attorney upon notice to dismiss the appeal. The motion was granted and an order entered dismissing the appeal. From that order this appeal is taken.
    
      Maxwell Brothers, for app’lt; C. 8. Nishet, for resp’ts.
   Per Curiam.

It is not disputed that the court of sessions had power to modify the sentence of the court of special sessions. We think, therefore, that although the defendant pleaded guilty, yet he had the right to have the court of sessions exercise its discretion as to the sentence.

The order dismissing the appeal is reversed.  