I am for reversal on two grounds. In the first place the county judge had no power to change his sentence after it once had been imposed. Having sentenced the defendants to State prison, he subsequently and after affirmance of the judgments of conviction by the Appellate Division sent for the defendants and changed his sentence from imprisonment to one of a fine of $300. He repeatedly stated that he would change or modify his sentence. This he attempted to do by suspending the execution of the judgment on condition that the defendants pay a fine of $300. The defendants paid the fines and were released. This action of the county judge was illegal and unauthorized.
Some of my associates say that the imposition of the fine, although illegal, may be ignored; that the judge *Page 498 merely suspended the execution of the judgment; that even if he had no power to impose the fine, the matter may be overlooked or disregarded. Can it be so far disregarded that the defendants can sue and get back the money illegally paid? Or again, can the payment of the fine be so far disregarded that the judge under section 2188 of the Penal Law may revoke the suspension and execute the original judgment of imprisonment? These questions to my mind show that we cannot disregard the imposition of the fine as a wholly unjustified and illegal act. The judge in reality as well as in form changed the sentence from one of imprisonment to one of fine, and released the defendants. He had no power to impose such a condition, and he had no power to change his sentence from imprisonment to fine. His act must be considered as a whole. I have never heard of a court bargaining with the defendants regarding the sentence or judgment to be entered. The law does not recognize such methods. Restitution for wrong done often is taken into consideration by the courts in imposing sentence, but here there was no restitution for any wrong done. The court was simply executing the law in imposing a sentence provided by law, and there is no law for the suspension of sentence upon condition that a defendant pay money to the county.
I also agree with Judge KELLOGG that section 2188 gives no power to the county judge to suspend sentence after affirmance by the Appellate Division. The last words of the section, reading: "Provided, however, that the imprisonment directed by the judgment, shall not be suspended or interrupted after such imprisonment shall have commenced," must be read in connection with other provisions of the Code of Criminal Procedure and the Penal Law. After a sentence of imprisonment, it is the duty of the sheriff forthwith to deliver the defendant to the proper prison authorities for incarceration. Before he does this, the judge may suspend the judgment. But *Page 499 if the sheriff in executing the judgment is stayed by a certificate of reasonable doubt, the stay or the certificate operating as a stay takes the place of the imprisonment. In other words, this proviso of section 2188 runs until the imprisonment in the ordinary course of procedure or until something else is substituted for the imprisonment. The certificate of reasonable doubt is such substitution. These defendants were out on a certificate of reasonable doubt pending the appeal to the Appellate Division. That court passed upon the judgment of conviction and affirmed it. I do not think it was the intention of the Legislature to give to the trial court thereafter the power to suspend the judgment which the Appellate Division affirmed. The fact that the Appellate Division has the power to modify the judgment imposed upon the defendants is a strong indication that the power of suspension given in section 2188 did not survive the action of the Appellate Division. In fact, the power ceased long before action by the Appellate Division. It ceased with the imprisonment of the defendants. If there had been no certificate of reasonable doubt they would have been imprisoned immediately. The certificate of reasonable doubt, while keeping them out of prison did not in my judgment keep alive the power to suspend the execution of the judgment.
This interpretation of section 2188 to my mind is quite reasonable. If the trial courts are to have the power of suspension after the appellate courts have passed upon the record, the matter should be called to the attention of the Legislature so that their intention in this matter may be more clearly expressed. I for one do not believe that the Legislature ever intended this power to exist beyond the day when imprisonment should have taken place in the ordinary course of procedure.