People ex rel. Kotasek v. Perhach

The petitioner appeals from a judgment denying his application for a writ of habeas corpus. It seems to be agreed that the sole question presented is whether or not a County Court may, in its appellate capacity, remand a prisoner to a Special Sessions Court for resentencing after setting aside an illegal sentence. In 1953 section 764-a of the Code of Criminal Procedure was enacted by the Legislature to provide that a Court of Special Sessions may correct an illegal sentence at any time and may continue for such purpose. The petitioner does not deny that the County Court had the power to vacate the illegal sentence and does not allege that the County Court did not impose a lawful sentence, but rather, rests on the assumption that “ the second sentence imposed by the special sessions court, under which your petitioner is now being detained, is void for want of jurisdiction of the matter by the sentencing court.” This contention must fail since the Court of Special Sessions has continuing jurisdiction and therefore, the petitioner has no basis for claiming that the second sentence is illegal in a habeas corpus proceeding. Judgment affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Aulisi and Hamm, JJ., concur.