SUPREME COURT — SPECIAL TERM — NEW YORK.

June, I920.

#### THE PEOPLE v. DOROTHY BYRNE.

(112 Misc. 377.)

Certificate of reasonable doubt—When application for, granted— New .trial—Criminal law—Penal Law, §■ 1897.

While defendant was examining a shining object which she had picked from the gutter, a stranger who saw her pick it up recognized it as a gun and while attempting to take it from her a police officer arrested them both. On the hearing before the magistrate the stranger was discharged and the defendant held for trial on a charge of a violation of section 1897 of the Penal Law. At the trial her request to have the stranger called as a witness in her behalf was denied and she was upon conviction sentenced to the Bedford Reformatory, where she may be confined for three years. *Held,*that a motion for a new trial having been denied by a divided court, her application for a certificate of reasonable doubt will be granted.

Motion for a certificate of reasonable doubt.

*Harry E.*Lewis, *District*Attorney, for People.

*Belfer & Belfer (Julius S.*Belfer, of counsel), for defendant.

Fawcett, J.:

This is a motion for a certificate of reasonable doubt, in connection with the defendant’s appeal from a conviction of a violation of section 1897 of the Penal Law, after a trial in the Court of Special Sessions. °

The record hertein shows that the only witness for the People was the arresting officer. His testimony is substantially as follows: That on March 10, 1920, about 9 :30 p. m., at Bergen street near Hoyt street, Brooklyn, U. Y., be saw a man, James *393Francis Phillips, trying to pull a gun out of the defendant’s. hand. He questioned them. They said that she picked up the gun and that he was trying to take it away from her. He placed both of them under arrest. He testified to nothing else of importance.

The defendant was the only witness called in her behalf. Although she requested to have the stranger James Francis Phillips called in her behalf, that privilege was denied her. She had no other witnesses because her case was intended to be adjoxxrixed by her counsel, who failed to appear, as he was engaged elsewhere. Her testimony is sxxbstantially as follows: While waiting for a Bergen street car her attention was sxxddenly attracted to a shining object in the gutter. She picked it xxp and examined it, when a stranger, who saw her pick it xxp, and who recognized it to be a gun, attempted to pull it away from her, when an officer came along and arrested the two of them. The man was discharged on the hearing before the magistrate and this defendant was held for trial in the Coxxrt of Special Sessions. The coxxrt sentenced defendant to the Bedford ^Reformatory, where she may be confined for three years.

Subseqxxently a motion for a new trial in the interest of jixstice was made before the court,' composed of the three judges who tried defendant, and Hr. Jxxstiee Salmon, dissentiixg from the majority, decided in favor of a new trial.

This case seems to come xxnder the rxxle of People v. Miles (173 App. Div. 179, 34 N. *Y.*Crim. 555). In this case the defendaxit was tried for the violation of sectioxx 1897 of the Penal Law, the same as in the case at bar. The sentence of the court in that case was one year and foixr moixths. In the case at bar the sentecnce amounts to three years. The defendant in the instant case, never having been previoxxsly convicted, nor shown to have possessed the revolver xxnder any other eircxxmstances than as testified to herein, the sentence seems xxnjxxst. The reasoning of the coxxrt in the case of People v. Miles *394(supra) is peculiarly applicable herein. The court said: “ While the courts in civil actions have long recognized the right of reversing judgments because they were for inadequate or excessive amounts, there appears to have been an impression among the members of the bar that the judgment in a criminal case could not be disturbed on account of an excessive sentence, and this impression has been so far controlling that many an act of injustice has been consummated under the forms of law which should have been righted in the appellate court; many au unjust sentence has been endured because counsel have failed to invoke the powers of the appellate tribunals to temper individual prejudices with judicial discretion. * * * Under the provisions of section 527 of the Code of Criminal Procedure the court is authorized on appeal to grant a new trial if it be satisfied that the verdict against the prisoner is against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below, and this is clearly the equivalent of the provisions of sections 999 and 1317 of the Code of Civil Procedure in so far as it relates to the judgment. * * * An appeal from a judgment brings up the question whether justice has been done in the particular case, and an excessive sentence, a sentence which is unjust in its relation to the offense for which the prisoner has been convicted, is against law just as much as a verdict of a jury for excessive damages in a civil action is against law. The law, theoretically at least, is founded on justice, and an injustice is against law in a judicial sense, and it is entirely immaterial whether the injustice appears in the sentence or in the proceedings leading up to the sentence.”

The sentence of the defendant seems to be so out of proportion to the crime for which she was convicted, and having in mind that the trial court was divided in its decision on the motion for a new trial, I entertain a reasonable doubt as to whether the conviction should stand.

*395The application for the certificate prayed for is granted and the court will admit her to hail in the sum of $500.

Application granted.