The relator was convicted of forgery in the second degree after trial in the Court of General Sessions on June 23, 1926.
On June 30, 1926, the relator was arraigned for sentence on such conviction and an order was made suspending sentence and directing that relator be placed upon probation for two years.
Before the expiration of the two-year probation, on October 22, 1927, the relator was arrested, charged with larceny. On November 10, 1927, upon an application by the probation officer reporting such arrest as a violation of probation, a bench warrant was issued out of the Court of General Sessions for the arrest of relator.
*147The relator was indicted for grand larceny, and the trial of relator on January 19, 1928, resulted in an acquittal by direction of the court. On January 27, 1928, relator was arraigned before the court for sentence upon the original conviction for forgery, upon charges of probation violation.
The court then ordered the original suspension of relator’s sentence continued, and ordered extended by three years relator’s original probationary term of two years from June 30, 1926.
On November 19, 1929, the Court of General Sessions ordered a bench warrant to issue for the arrest of relator, upon an application of the probation officer who charged that relator had violated probation by leaving the jurisdiction on October 15, 1929.
On October 23, 1931, after arraignment on said date before the court, an order was made revoking the suspension of sentence of June 30, 1926, and the continuation of said suspension of sentence of January 27, 1928, and sentencing relator to the New York County Penitentiary, where he is at present detained.
We think the Court of General Sessions had no power to add three years to relator’s probationary term on January 27, 1928, and its order to that effect was in excess of jurisdiction and void. The court, therefore, was without authority to sentence relator to the penitentiary after June 30, 1928, the date of expiration of the original probationary period.
Probation for relator was fixed at two years from June 30, 1926, and normally would have terminated on June 30, 1928. Relator was sentenced and committed on October 23, 1931, during the extended probationary period.
Power to sentence a probationer is expressly limited to the confines of the probationary period. The Code of Criminal Procedure, section 483, subdivision 4, declares: “At any time during the probationary term of a person convicted and released on probation the court * * * may in its or his discretion, revoke and terminate such probation. Upon such revocation and termination, the court or justice may, impose sentence.”
The time limit is as prescribed: “At any time during the probationary term.”
Where sentence has been suspended, the court is empowered to impose sentence at any time within the longest period for which defendant might have been sentenced; in the instance of defendant being placed on probation, and the period of probation exceeds the time for which defendant might have been sentenced, at any time during the probationary period. (Code Crim. Proc. § 470-a; Penal Law, § 2188, as amd.)
Relator was given a suspended sentence with probation; and his *148probationary term did not exceed the time for which he might have been sentenced.
The Code of Criminal Procedure, section 483, applies to this case which falls within its terms, and hence the court could have sentenced relator only during his probation period, and not later than June 30, 1928. We think the commitment of relator was made without power and the writ should be sustained and relator discharged.
The order should be reversed, the writ of habeas corpus sustained, and the relator discharged from the custody of the respondent.
Merrell and Townley, JJ., concur; Finch, P. J., and Martin, J., dissent and vote for affirmance.