People v. Atwell , 17 Misc. 2d 425 ( 1959 )

Richard J. Sherman, J.

This is an appeal from a conviction for petit larceny on December 18, 1931. Previously, the defendant had been charged with grand larceny and on the aforesaid date, he pleaded guilty to the reduced charge of petit larceny on the aforesaid date before the Honorable Blain Packer, a Justice of the Peace in and for the Town of Providence. Upon defendant’s plea of guilty, defendant was sentenced to serve a term of 40 days in the Saratoga County jail. On December 24, .1931, defendant was released in the custody of his attorney, an appropriate affidavit having been filed on appeal. The only records available are the affidavits on appeal with the following notation thereon:

“ The within appeal is hereby allowed and defendants (two) are released in the custody of their attorney.

‘ ‘ Dated December 24, 1931

Lawrence B. McKelvey,

Saratoga County Judge. ’ ’

It is not known whether or not the papers on appeal were served on the Justice. There is no certificate of conviction on file, nor is there any record of a return by the Justice. No motion was made, so far as the record appears, to compel the Justice to file a return, nor was the appeal ever brought to argument.

There apparently was a dereliction of duty on the part of the Justice as well as the defendant. In view of the circumstances and where the conduct of the defendant has been exemplary over the intervening years, the appeal should be granted and the judgment of conviction vacated.

Submit order accordingly.