
    The People of the State of New York, Respondent, v. Robert Renzi and Roger Dunlap, Appellants.
    County Court, Wayne County,
    February 25, 1959.
    
      James 8. Hurley for appellants.
    
      Roger E. Davis, District Attorney, for respondent.
   G-eorge B. Parsons, J.

This case was a case of the People of the State of New York against Robert Renzi and Roger Dunlap. They were brought before Justice of the Peace William Benedict, and brought before me on a charge of petit larceny in violation of section 1299 of the Penal Law for the alleged stealing of certain tires. This was in the Justices’ Court of the Town of Ontario.

This matter was brought up on appeal to this court after Judge Benedict had found the defendants guilty, and although according to their own affidavits they did not have counsel, they both have said in their affidavits that they were informed of their legal and constitutional rights and entered a plea of guilty to the charge. Judge Benedict sentenced both defendants to a term of 60 days in the county jail. The appeal was brought up not on the point of law strictly speaking but on the ground that the sentence was excessive.

This court in considering this matter, of course, was not the court of original jurisdiction. It did not have the defendants before the court in the first instance and, therefore, all of the surrounding circumstances and facts which Judge Benedict had this court presumes and took into consideration are merely before us by affidavits and oral arguments. It is not the jurisdiction or duty of this court to retry the case even though the defendants were present. That was done in the lower courts and it was before this court on appeal.

On the question of whether the sentence was excessive or whether it was not this court is not going to venture an opinion of what it might have been or what might have been better for the protection of society as well as control of the defendants in the lower courts because it is not the duty of the appellate court to decide whether an alternative sentence would have been better or whether probation would have been better or not. The fact remains that the sentence was passed down by Judge Benedict for petit larceny, a crime which could have been punished by a considerably heavier sentence than it was. There were several conferences with all the parties concerned including the attorney for the defendants and as a result this court holds that it could not consider that a sentence for petit larceny of 60 days in the county jail is of itself excessive and, therefore, the motion on appeal for setting aside the sentence as excessive is denied in both cases of the People versus Robert Renzi and People versus Roger Dunlap.  