The relator, Julius Spiegel, was convicted of the crime of forgery on June 23, 1926, in the Court of General Sessions, county of New York. On June 30, 1926, he received a suspended sentence and was paroled for two years. On October 22, 1927, he was again arrested charged with larceny. After a trial he was acquitted.
On November 10, 1927, upon the application of one of the probation officers attached to the court, which application set forth the arrest for larceny as a violation of relator’s probation, a bench warrant was issued for the arrest of Spiegel.
On January 27, 1928, the petitioner was arraigned before the court for sentence upon the conviction for forgery because he had violated his parole. The court thereupon continued the probationary period for an additional three years. On November 19, 1929, the petitioner having failed to report since October 15, 1929, he having left the jurisdiction without permission, the court issued another bench warrant for his arrest. On October 23, 1931, the court revoked the order of January 27, 1928, and sentenced the petitioner to the penitentiary.
A writ of habeas corpus directed to the warden of the New York County Penitentiary was issued out of the Supreme Court on March 18, 1932, on behalf of the petitioner. On March 25, 1932, the writ was dismissed without prejudice, with leave to renew the application and hearing before another justice of the court. A second petition for a writ of habeas corpus on behalf of the petitioner was issued out of the Supreme Court on April 22, 1932, directing the respondent to produce the petitioner on April 25, 1932. After a hearing upon the petition, the court on May 20, 1932, entered an order dismissing the writ and remanding the petitioner to the penitentiary. It is from this order that the petitioner has appealed.
*149The question at issue is whether the Court of General Sessions, on October 23, 1931, had power to sentence petitioner to the penitentiary after the expiration date of the first probationary period.
Section 483 of the Code of Criminal Procedure provides, in subdivision 4 thereof, as follows: “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 * * * the court or justice may impose sentence * * * in accordance with the provisions of section four hundred and seventy-a of the Code of Criminal Procedure.”
Section 470-a of the Code of Criminal Procedure provides: “If, after a plea or verdict of guilty or after a verdict against the defendant upon a plea of former conviction or acquittal, sentence shall have been suspended, the court may impose any sentence or make any commitment which might have been imposed or made at the time of the conviction.”
There can be no question that the court on June 30, 1926, could have sentenced the petitioner to a term in prison not to exceed ten years. On January 27, 1928, when the petitioner was arraigned for sentence on the charge of violating his parole, the judge in the Court of General Sessions, instead of sending him to prison, reminded petitioner that his conduct was bad and that he was “ skating on rather thin ice ” in his business dealings, and then continued his probation for three years in addition to the term of probation of two years which he fixed when he first suspended sentence on the petitioner.
On June 30, 1926, the court could have sent the prisoner to jail for a term not exceeding ten years, suspended sentence or placed petitioner on probation. The court suspended sentence and placed the prisoner on probation for two years. Thereafter, during any part of the ten-year term for which the prisoner might have been sent to jail, the court could revoke the previous disposition of the case and send the prisoner to jail for the remainder of the term. That is the practical course that has been followed in this case. The mere fact that the court first extended the period of probation in no way affects the result. The court revoked the suspended sentence, which it had a right to do at any time during the period for which the sentence had been originally suspended In other words, a suspended sentence may be revoked at any time, the prisoner brought before the court and sentenced to prison. The maximum term that the petitioner may serve in the penitentiary is three years. In 1926 he could have been sentenced for ten *150years in a State prison. The court, therefore, properly exercised its power in disposing of this case.
The fact that the prisoner was placed on probation did not deprive the court of the power to at any time revoke the order placing the prisoner on probation and sentence him to a jail term. The same is also true as to a suspended sentence. That also could be revoked and the petitioner sent to jail.
It follows that irrespective of the power of the court to extend the probationary period, because of a violation of parole, it also had power to sentence the petitioner during the longest term which he could have originally received.
In People ex rel. Hubert v. Kaiser (206 N. Y. 46) the court said: “ The summary remedy of a writ of habeas corpus, which is open to every person detained in custody, that the legality of his detention may be inquired into, cannot perform the functions of an appeal from the judgment of conviction. The court, before which a prisoner is brought under the writ, will inquire into the question of jurisdiction and if it appears that the power existed to pronounce the judgment, the writ must be dismissed.”
The order dismissing the writ of habeas corpus and remanding the petitioner to the New York County Penitentiary should be affirmed.
Finch, P. J., concurs.
Order reversed, the writ of habeas corpus sustained and the relator discharged from custody of the respondent.