The People of the State of New York, Respondent, v. John Cerulli, Appellant

Second Department, July, 1917. The People of the State of New York, Respondent, v. John Cerulli, Appellant. Crime — rape — punishment. Appeal by the defendant from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 5th day of March, 1917, convicting him of the crimes of rape in the second degree and abduction. [MAJORITY] Judgment of the County Court of Bungs county affirmed. No opinion. Thomas, Mills and Putnam, JJ., concurred; Jenks, P. J., read for reversal, with whom Blaekmar, J., concurred. [DISSENT — Jenks, P. J. (dissenting):] Jenks, P. J. (dissenting): The proof is sufficient to justify the verdict, and there are no erroneous rulings. But Mr. Justice Blaekmar and I think that there should be a new trial, because the sentence is so excessive as to justify the exercise of the power declared by this court in its Third Department in People v. Miles (173 App. Div. 179). The defendant, aged seventeen years, a first offender, received the highest sentence possible under the law, despite a recommendation of mercy from the jury. If the question of power were one of first impression, we would not be clear of its existence. We think that question should be determined by the Court of Appeals. Blaekmar, J., concurred. _