§ 2188. Duty of court to sentence; suspending sentence. The several sections of this chapter which declare certain crimes to be punishable as therein mentioned devolve a duty upon the court authorized to pass sentence to determine and impose the punishment prescribed, but such court may in its discretion suspend sentence, during the good behavior of the person convicted, where the maximum term of imprisonment prescribed by law does not exceed ten years and such person has never been convicted of a felony. Courts of special sessions are empowered to suspend sentence and at any time within the longest period for which a defendant might have been sentenced, may issue process for the re-arrest of the defendant, and when arraigned the court as it is then constituted may proceed to enter judgment and impose sentence.

In the case of children under sixteen years of age, at the time of conviction, the longest period of time after suspension of sentence within which a sentence may be imposed for such offense 'shall be one year; and in any proceeding of a criminal nature, triable before a magistrate, the magistrate upon conviction, may suspend sentence and place the offender under probation and at any time thereafter, during the longest period for which he could have been committed in the first instance, such magistrate, or his successor, if his term has expired, may pronounce any judgment or sentence or impose any fine or other penalty, or make any commitment which might have been pronounced, imposed or made at the time the conviction was had.

Derivation: Penal Code, § 12, as amended L. 1893, ch. 279; L. 1905, ch. 655.

People v. Harrington (1884), 15 Abb. N. C. 161, 3 N. Y. Cr. 141, 1 How. Pr. (N. S.) 37; People ex rel. Forsyth v. Court of Sessions (1894), 141 N. Y. 293, 23 L. R. A. 856, rev'g 66 Hun, 550; People ex rel. Dunnigan v. Webster (1895), 86 Hun, 73, 14 Misc. 617, 36 N. Y. Supp. 745, 11 N. Y. Cr. 484; see also Miller's case, 5 Cow. 370; People v. Morrisette, 20 How. Pr. 118; Brown v. Rice, 57 Me. 55, 2 Am. Rep. 11; People v. Meservey, 76 Mich. 223; In re Webb, 89 Wis. 354, 27 L. R. A. 356; People v. Archer, 18 Chi. Leg. News. 245; People v. Mueller, 4 Crim. L. Mag. 725.

§ 2189. (Am'd, 1909.) Indeterminate sentences to State prisons.

A person never before convicted of a crime punishable by imprisonment in a state prison, who is convicted in any court in this state of a felony other than murder first or second degree,

and sentenced to a state prison, shall be sentenced thereto under an indeterminate sentence, the minimum of which shall not be less than one year, or in case a minimum is fixed by law, not less than such minimum; otherwise, the miniumum of such sentence shall not be more than one-half the longest period and the maximum shall not be more than the longest period fixed by law for which the crime is punishable of which the offender is convicted. The maximum limit of such sentence shall be so fixed as to expire during either of the following months; April, May, June, July, August, September and October.

Derivation: Penal Code, § 687a, added L. 1901, ch. 425, and amended L. 1902, ch. 282; L. 1906, ch. 36; L. 1907, ch. 737. Amended by L. 1909, ch. 282. In effect May 8, 1909.

People v. Hochstim (1902), 76 App. Div. 25, 26, 78 N. Y. Supp. 638, 986; People ex rel. Clark v. Warden of Sing Sing Prison (1902), 39 Misc. 113, 78 N. Y. Supp. 907, 119 Crim. Rep. 420; People v. Adams (1903), 176 N. Y. 362, 19 N. Y. Cr. 425, 17 N. Y. Cr. 558, aff'd Sub. Nom. Adams v. New York, 192 U. S. 585; People ex rel. Adams v. Johnson (1904), 44 Misc, 551, 90 N. Y. Supp. 134, 19 N. Y. Cr. 435; People ex rel. Schall v. Deyo (1905), 181 N. Y. 425, 429, 19 N. Y. Cr. 442, rev'g 103 App. Div. 126, 127, 128, 93 N. Y. Supp. 80; People ex rel. Ammon v. Johnson (1906), 114 App. Div. 877, 878. 100 N. Y. Supp. 256, 20 N. Y. Cr. 377; People v. Madden (1907), 120 App. Div. 343; People ex rel. Dawkins v. Frost (1908), 129 App. Div. 499; see also Murphy v. Com., 172 Mass. 264, 43 L. R. A. 154; Dryer v. State, 187 U. S. 71.

§ 2190. Sentence to imprisonment on two or more convictions.

Where a person is convicted of two or more offenses, before sentence has been pronounced upon him for either offense, the imprisonment, to which he is sentenced upon the second or other subsequent conviction, must commence at the termination of the first or other prior term or terms of imprisonment, to which he is sentenced.

Where a person, under sentence for a felony, afterward commits any other felony, and is thereof convicted and sentenced to another term of imprisonment, the latter term shall not begin until the expiration of all the terms of imprisonment, to which he is already sentenced.

Derivation: Penal Code, §§ 694, 695.

People ex rel. Tweed v. Liscomb (1875), 60 N. Y. 560, 19 Am. Rep. 211. rev'g 3 Hun, 760, 6 Th. & C. 658; Thomas v. People (1876), 67 N. Y. 218; People ex rel. Dawkins v. Frost (1908), 58 Misc. 621, 109 N. Y. Supp. 1121; People v. Fabian (1908), 126 App. Div. 95; see also Haggerty

People, 6. Lans. 347, 53 N. Y. 642; Eldridge v. State, 37 Ohio, St. 191; Castro v. Queen, 6 App. Cas. 229, 34 Eng. Rep. 399.

§ 2191. Sentence when punishment prescribed is imprisonment for not less than a specified time.

When a crime is declared by statute to be punishable by imprisonment for not less than a specified number of years, and no limit of the duration of the imprisonment is declared, the court authorized to pronounce judgment upon conviction may, in its discretion, sentence the offender to imprisonment during his natural life, or for any number of years not less than the amount prescribed.

Derivation: Penal Code, § 696, in part, as amended L. 1892, ch. 662, For remainder of section, see § 2192, post.

§ 2192. Sentence where punishment prescribed is imprisonment for not more than a specified time.

When a crime is declared by any of the provisions of this chapter to be punishable by imprisonment for not more than a specified number of years, the court authorized to pronounce judgment upon conviction may, in its discretion, sentence the offender to imprisonment for any time less than that prescribed by the provisions of this chapter.

Derivation: Penal Code, § 696, in part, as amended L. 1892, ch. 662. For remainder of section, see § 2191, ante.

2193. Calculating term of imprisonment.

When a convict is to be sentenced to imprisonment in a state prison or a penitentiary, the court before which the conviction was had must limit the term of the sentence, having reference to the probability of the convict earning a reduction of his term for good behavior, as provided by article nine of the prison law, and assuming that such reduction will be earned, so that the sentence. will expire during either of the following months: April, May, June, July, August, September and October.

But the provisions of this section shall not apply in the following cases:

1. Where the sentence is to be for the term of one year or less. 2. Where the term of imprisonment for the crime of which the convict was convicted absolutely fixes a single definite period of time.

3. Where a judgment of conviction has been affirmed upon

an appeal, and it becomes necessary for the court to impose the same sentence as that originally imposed.

The officers of every prison or penitentiary are hereby expressly prohibited from taking into their custody any convict sentenced in violation of the provisions of this section, and any convict so illegally sentenced shall be returned by the sheriff of the county where the conviction was had to the court to be resentenced in conformity to the provisions of this section. Provided that if it shall appear to the officers of any prison or penitentiary at the time it is sought to incarcerate a convict therein that the court which imposed the sentence has adjourned, then it shall be lawful for said officers to receive said convict and hold him in their custody until he can be re-sentenced as herein provided, and the second or re-sentence shall be deemed to have begun on the date of the convict's reception under his first sentence. The officers of any prison or penitentiary shall, in the case of a convict so illegally sentenced to imprisonment therein, immediately notify the court of their action.

Derivation: Penal Code, § 697, as amended L. 1886, ch. 68; L. 1888,

ch. 492.

People v. Trimble (1891), 60 Hun, 364, 15 N. Y. Supp. 60; People ex rel. Adams v. Johnson (1904), 44 Misc. 550, 90 N. Y. Supp. 134, 19 N. Y. Cr. 435; People ex rel. Schali v. Deyo (1905), 103 App. Div. 126, 127, 128, 93 N. Y. Supp. 80; People ex rel. Ammon v. Johnson (1906), 114 App. Div. 879, 100 N. Y. Supp. 256, 20 N. Y. Cr. 377; see also People v. Davis, 19 N. Y. Supp. 783.

§ 2194. Sentence of minor under sixteen years of age.

When a person under the age of sixteen is convicted of a crime, he may, in the discretion of the court, instead of being sentenced to fine or imprisonment, be placed in charge of any suitable person or institution willing to receive him, and be thereafter, until majority or for a shorter term, subjected to such discipline and control of the person or institution receiving him as a parent or guardian may lawfully exercise over a minor. A child under sixteen years of age committed for misdemeanor. under any provision of this chapter, must be committed to some reformatory, charitable or other institution authorized by law to receive and take charge of minors. And when any such child is committed to an institution it shall, when practicable, be

committed to an institution governed by persons of the same religious faith as the parents of such child.

Derivation: Penal Code, § 713, as amended L. 1884, ch. 46.

People ex rel. Zeese v. Masten (1894), 79 Hun, 580, 29 N. Y. Supp. 891; People ex rel. Cronin v. Carpenter (1898), 25 Misc. 341, 55 N. Y. Supp. 521; People ex rel. Mt. Magdalen's School v. Dickson (1890), 123 N. Y. 639, aff’g 57 Hun, 312, 10 N. Y. Supp. 604; People ex rel. Sanfilippo v. New York Protectory (1902), 38 Misc. 660, 17 N. Y. Cr. 113, 78 N. Y. Supp. 232; Corbett v. St. Vincent's Industrial School (1903), 79 App. Div. 334, 341, 79 N. Y. Supp. 369.

§ 2195. Imprisonment when sentenced to a reformatory.

When a person shall be sentenced to imprisonment in a reformatory as prescribed in section three hundred and seven of the prison law, the court imposing such sentence shall not fix or limit the duration thereof.

Derivation: L. 1887, ch. 711, § 9, in part, rewritten.

§ 2196. Sentence to penitentiary under the provisions of section 320 of the prison law, of person not punishable by imprisonment in state prison.

It shall be the duty of every court, police justice, justice of the peace, or other magistrate, by whom any person may be sentenced, in the several counties of this state, for any term not less than sixty days, for any crime or misdemeanor not punishable by imprisonment in the state prison, during the continuance of the agreement mentioned in section three hundred and twenty of the prison law, to sentence such person to imprisonment in such penitentiary, there to be received, kept and employed in the manner prescribed by law, and the rules and discipline of such penitentiary; and it shall be the duty of such court, justice or magistrate, by a warrant, duly signed by the presiding judge, or justice or clerk of such court, or by such justice or other magistrate so giving such sentence, to cause such person so sentenced, to be forthwith and by the most direct route conveyed by some proper officer to such penitentiary. It shall be the duty of the sheriffs, deputy sheriffs, constables or policemen in and for the several counties of this state, to whom any warrant of commitment for that purpose may be directed by any court or magistrate in this section mentioned, to convey forthwith such person so sentenced, to such penitentiary, and there deliver such person to the