sentence exists at common law is still important in cases of crimes outside the scope of the Penal Law.

PROBATION

Historical development.-Probation in New York began in 1901 under a law which empowered all justices of courts having original criminal jurisdiction in all cities, to appoint officers to investigate and report cases which the courts thought might deserve mitigation of punishment by way of probation. Probation officers could be chosen among private citizens, clerks of court or police officers, or clerks from the district attorney's office. They received no compensation. Probation could be extended to all classes of crimes where there were "circumstances in mitigation." Under this law the work of probation developed slowly and irregularly.2

In 1918 the courts were forbidden to place on probation those convicted of crimes punishable by death or life imprisonment; in 1928 fourth offenders and those convicted of a felony committed while armed with a weapon, were taken out of the scope of probation.*

In 1920 the law was amended to forbid the courts' suspending sentence or placing on probation after the term of imprisonment had begun." In 1928 it was required for the first time that investigation and report be made before probation could be granted. In that year the district attorney was first given an opportunity to be heard in felony cases before probation could be granted. And in 1930 suspension of sentence alone was forbidden without prior investigation and report.R

Probation officers were first salaried in 1904. The present methods of appointment, qualification, and compensation date from 1928.10 The law setting up a county probation

1 N. Y. Laws 1901, ch. 372, § 1.

Chute, State Supervision of Probation Work (1918), 8 J. Crim. L. 823. 'N. Y. Laws 1918, ch. 457.

4 Id. 1928, ch. 841,

Id. 1920, ch. 568.

Id. 1928, ch. 841.

Ibid.

N. Y. Laws 1930, ch. 298.

N. Y. Laws 1904, ch. 508; People ex. rel. Kelley v. Dooley, 169 App. Div. 423, 155 N. Y. Supp. 326 (2d. Dep't 1915).

10 N. Y. Laws 1928, ch. 460.

department in Westchester county is as recent as 1930,11 and the law allowing the organization of county probation departments was passed in 1936.12

The first independent commission for the supervision of probation was established in New York in 1907.18 Through the work of the commission probation increased tremendously. The State probation commission made investigations and recommendations, watched appointment of officers and cooperated with the courts to improve personnel and conduct conferences. The commission members were seven, serving without pay, and consisted of four appointees of the Governor, two members of the State board of charities and State commission of prisons, designated by their respective bodies, and the commissioner of education.14

Subsequently, the functions of the commission were assigned to the new division of probation in the department of corrections. But the commission remained executive head of the new division, although the member of the State commission of prisons who had a place on the probation commission was replaced by a member of the State commission of correction.16 In 1928 a director of probation replaced the commission as head of the division of probation. The director was given greater regulatory power. The commission remained, however, in an advisory capacity." Its membership was changed in 1929.18

Administrative organization.—The New York probation system is made up of probation officers appointed by the local courts and paid by the local governments, but under State supervision. One of the four major divisions of the State department of correction is the division of probation,10 headed by the director of probation, who exercises general

" Id. 1930, ch. 615.

12 Id. 1936, ch. 95.

13 Id. 1907, ch. 430.

14 N. Y. State Boards and Commissions Law § 30, 31.

15 N. Y. Laws 1926, ch. 343.

1 N. Y. State Departments Law §§ 401, 402, 409.

17 N. Y. Laws 1928, ch, 313, § 409.

18 Id. 1929, ch. 243, § 14.

19 The others are the divisions of (1) administration, (2) industries, and (3) criminal identification, records, and statistics N. Y. Correction Law § 7.

supervision over the administration of probation throughout the State.

Director of probation.-Specifically, the director of probation supervises the work of all probation officers by requiring reports, investigating probation bureaus, conducting investigations, and making recommendations. He has access to all records, and may issue subpoenas for witnesses and papers. With the approval of the commissioner of correction and the advice of the State probation commission, he has power to promulgate rules for the administration of probation throughout the State. He may also recommend the removal of any probation officer. At least three probation examiners are provided by law to assist the director.20

State probation commission.-The probation commission is an advisory body to the director. It consists of seven members, four of them appointed by the Governor to hold office during his term, one a member of the commission of correction, the State commissioner of correction and the director of probation. The members receive no compensation for their services in this capacity, except expenses.21

County probation departments.-In 1930 a county probation department was created for Westchester County, headed by a director appointed by the judge of the children's court, the county judge and the senior trial justice of the supreme court. The director was given power to appoint all probation officers for the county and have charge of their work.22 In 1936 all counties having a population of less than 600,000 and outside New York City were authorized to adopt a similar organization.23

Under the older law, still in effect in all counties except where a county department has been organized, probation officers are appointed by the county judge, after authorization and appropriation of the necessary funds, by the county board of supervisors.24 They may serve, however, in other courts as well as the county courts.

20 Id. § 14.

21 Ibid., as amended N. Y. Laws 1936, ch. 66.

22 N. Y. Code Cr. Proc. § 938-a.

23 Id. § 938-b, added by N. Y. Laws 1936, ch. 95. 24 N. Y. Code Cr. Proc. §§ 928, 929.

New York City.-In the court of general sessions of New York County, probation is administered by a chief probation officer, two deputies and additional officers appointed by the judges of that court without approval of any fiscal body. In the county courts of Kings, Queens, Bronx, and Richmond there is also a chief probation officer and two deputies who may be appointed by the judges of those courts if in their judgment they become necessary.25

In the inferior courts of New York City there is a chief probation officer and deputy chiefs, appointed and removable by the chief city magistrate. The latter prescribes duties and assigns the officers to the various city courts. Additional officers may be appointed by him only upon authorization of the board of aldermen and recommendation of the board of estimate and apportionment. The administration of probation in the special sessions court is similarly organized under the direction of a majority of justices of that court.26

Procedure. Any court, judge, or magistrate authorized to impose sentence may suspend either the imposition or execution of sentence, and in its discretion may place the defendant on probation." The court, on ordering probation, must give written notice to the probation officer into whose custody the probationer is placed.28 The sentence may be suspended and defendant put on probation at any time during or after the terms of court and after affirmance

25 Id. § 938. The chief probation officer of the court of general sessions has a staff large enough to permit the separation of assignments into two parts, investigative and supervisory. The result is exhaustive presentence investigation and intensive supervision during probation.

28 N. Y. Inferior Cr. Court Act § 150 et seq., as amended N. Y. Laws 1933, ch. 746.

N. Y. Penal Law § 2188, as amended N. Y. Laws 1933 ch. 197 and ch. 513; N. Y. Code Cr. Proc. § 483 (1), as amended N. Y. Laws 1933, ch. 190. When sentence is suspended after affirmance of a judgment by the appellate division and the court of appeals, the affirmance by those courts is not an expression of opinion as to the propriety of staying or suspending execution of sentence. There is no jurisdiction in either court to express such an opinion with any authoritative force. People ex rel. Woodin v. Ottaway, 247 N. Y. 493, 161 N. E. 157 (1928) aff'g. mem. 222 App. Div. 711, 224 N. Y. Supp. 887 (4th Dep't 1927) which aff'd. 129 Misc. 120, 220 N. Y. Supp. 671 (Sup. Ct. 1927) motion for rearg. den. 248 N. Y. 527, 162 N. E. 511 (1928). Upon the hearing of an appeal from a magistrate's court, the court of general sessions may not suspend the trial court's sentence or place the defendant on probation; except where a new trial is had before it it cannot suspend sentence. People v. Maher, 92 Misc. 50, 155 N. Y. Supp. 279 (Gen. Sess. 1915).

28 Code Cr. Proc. §§ 932, 487.

of the judgment on appeal, but not after the imprisonment has once been entered upon.20 The term of imprisonment may not be interrupted by an order of suspension or probation even when the order is made at the same time that judgment is pronounced, if it is to take effect after a period of incarceration.30 The effect of this ruling is to prohibit the suspension of the execution of part of a sentence of imprisonment. But both at common law and under the statute, upon a sentence of fine and imprisonment the imposition of the latter can be suspended; " and presumably in such a case sentence of both fine and imprisonment could be imposed and execution suspended as to the imprisonment. Persons eligible.-The penal law prohibits suspension of either imposition or execution of sentence or the granting of probation in any case where the defendant is convicted (a) of a crime punishable by death or life imprisonment, (b) as a fourth offender, or (c) of a felony committed while armed with a weapon.*

32

The first of these categories presents no difficulties. The only offenses punishable by death or life imprisonment are treason and first and second degree murder.

29 N. Y. Penal Law 2188, as amended N. Y. Laws 1933, ch. 197 and ch. 513; N. Y. Code Cr. Proc., § 470-a; People ex rel. Woodin v. Ottaway, 247 N. Y. 493, 161 N. E. 157 (1928). A suspension at a place other than the court house where sentence was imposed is valid. Ibid. No probation can be ordered until after investigation and report by a probation officer. 30 People ex rel. Paris v. Hunt, 201 App. Div. 573, 194 N. Y. Supp. 699 (3d. Dep't 1922), aff'd. mem. 234 N. Y. 558, 138 N. E. 445 (1922), rev'g. 118 Misc. 44, 192 N. Y. Supp. 692 (Sup. Ct. 1922); People ex rel. Holton v. Hunt, 217 App. Div. 428, 216 N. Y. Supp. 765 (3d Dep't 1926); Matter of Moore v. Thorn, 245 App. Div. 180, 281 N. Y. Supp. 49 (4th Dep't 1935), aff'd mem., 270 N. Y. 502, 200 N. E. 290 (1936), rev'g 154 Misc. 136, 277 N. Y. Supp. 544 (Sup. Ct. 1926). In the Thorn case, defendant was convicted as a second offender and sentenced for 30 years. After serving 7 years. it was discovered that, at the time of the original sentence, no formal information relative to a former conviction had been filed. The prisoner was returned and the information filed, the original sentence vacated, the prisoner resentenced, the sentence suspended and probation granted. The appellate division held that in view of N. Y. Penal Law § 1934 (setting forth the procedure for resentencing when previous crimes are discovered) the later sentence had begun at the date of the original sentence and that, therefore, the suspension interrupted the prison term within the meaning of N. Y. Penal Law § 2188. Even before § 2188 was amended to provide so expressly, it was held that execution of a sentence could not be suspended after imprisonment had begun. People ex rel. Gilman v. Doty 37 N. Y. Cr. Rep. 249 (City Magistrates Ct. 1918).

81 People v. Page, 125 Misc. 538, 211 N. Y. Supp. 402 (Sup. Ct. 1925). "N. Y. Penal Law 2188, as amended N. Y. Laws 1933, ch. 197, ch. 513.