176 A.D. 602 | N.Y. App. Div. | 1917
The relator was convicted by a city magistrate on September 14, 1916, upon her plea of guilty, of the offense of disorderly conduct, to wit, of soliciting for the purpose of prostitution. The magistrate ordered her finger prints to be taken, and it
No question is raised as to the jurisdiction of the city magistrate to entertain the charge against the relator, or as to the regularity of the proceedings before him, or as to the sufficiency of the proof to sustain the conviction. The attack is upon the validity of the statute under which the indeterminate sentence of confinement for a term not exceeding two years was imposed. That act is section 4 of chapter 579 of the Laws of 1915 (known as the Parole Commission Act), as amended by chapter 287 of the Laws of 1916. So far as pertinent to the question involved in this appeal the section referred to reads as follows: “ The term of imprisonment of any person sentenced to any such workhouse shall be fixed by the court in imposing sentence, which term shall be for a definite period and shall not exceed six months; provided, however, that no person convicted in any of said cities of vagrancy, disorderly conduct tending to a breach of the peace, public prostitution, soliciting on streets or public places for the purpose of prostitution, or the violation of section one hundred and fifty of chapter ninety-nine of the laws of nineteen hundred and nine, as amended,
The objections raised by the relator are: (1) That the act does not accord due process of law to a person accused, and (2) that the provision for an increased sentence to one found to be an habitual criminal, the four offenses having been committed prior to the enactment of the present statute, is ex post facto.
We regard both of these objections as untenable. They have been completely and satisfactorily answered by Judge Nott of the Court of General Sessions (.People v. Dean, 94 Mise. Rep. 502), and by Mr. Justice Philbin {Matter of Morris, N. T. L. J., Dec. 28, 1916, not yet officially reported). We should be content to rest our decision of this appeal upon these cases, but for the fact that Judge Delehanty, also of the Court of General Sessions, has strongly expressed a contrary view in an unreported opinion. In view of this difference of opinion in the courts of first instance, it seems proper that the questions involved should be considered de novo by an appellate court.
The first question, as to the due process of law accorded to the accused, is to be considered in this proceeding only with regard to the requirements and provisions of the statute, and not with reference to the conduct of the proceeding by the magistrate. If there was error in the proceeding the relator’s remedy would be by appeal.
The statute as quoted provides specifically that the inquiry and determination as to whether a convicted person has been previously convicted shall be “after due notice and opportunity to the defendant to be heard in opposition to such accusation of prior convictions,” these words having been added to the
The contention that the statute is' ex post facto is based upon a misconception of its scope. The increased term of imprisonment imposed upon conviction of a repeated offense is .not so imposed for the earlier offenses, but for the repeated one. As was recently said by the Supreme Court of the United States: “ The propriety of inflicting severe punishment upon old offenders has long been recognized in this country and in England. They are not punished the second time for the earlier offense, but the- repetition of criminal conduct aggravates their guilt
The order appealed from is affirmed
Clarke, P. J., Smith, Page and Davis, JJ., concurred.
Order affirmed.
See Tenement House Law (Consol. Laws, chap. 61; Laws of 1909, chap. 99), § 160, as amd. by Laws of 1915, chap. 386. — [Rep.