294 N.Y. 540 | NY | 1945
The relator, by writ of habeas corpus, challenges the validity of his sentence as a fourth offender upon the ground that, in determining the basis for such sentence imposed under Penal Law, section 1942, the court erroneously included a prior conviction for an escape. The question presented is whether Penal Law, section 1699, excludes from the operation of section 1942 a prior conviction of escape from lawful penal servitude.
We have granted to the relator permission to appeal from an order of the Appellate Division which unanimously affirmed an order of County Court dismissing the writ of habeas corpus and remanding the relator to the custody of the respondent, the warden of the New York State Prison at Auburn.
We do not agree with the Attorney-General's assertion that the relator may not invoke the writ of habeas corpus to challenge a sentence which, according to relator's claim, exceeds statutory limits. If the relator's sentence is for a term longer than authorized by statute it is not a judgment of a court of competent jurisdiction even though the sentencing court had power to try the offense and fix the penalty. (People ex rel. Tweed
v. Liscomb,
Nor is there in the present proceeding a jurisdictional defect within the meaning of Civil Practice Act, section 1258, subdivision 4, by reason of the absence of proof that notices required by the statute last cited have been served upon the District Attorney *543 of the county within which the relator was detained and of the county from which he was committed. The requirement of the statute is that such notices shall be served before "an order for his [the prisoner's] discharge shall * * * be made". As no order for relator's discharge has yet issued in this proceeding it cannot be said that, in the circumstances disclosed by this record, the failure to give such notices deprived the County Court of jurisdiction.
We come then to the merits of our problem. On June 2, 1938, the relator was convicted in the County Court of Queens County of attempted burglary, second degree. Thereafter the District Attorney filed an information pursuant to Penal Law, section 1943, charging the relator as a fourth offender under section 1942 which provides in part as follows: "§ 1942. Punishment forFourth Conviction of Felony. A person who, after having been three times convicted within this state, of felonies or attempts to commit felonies, or under the law of any other state, government or country, of crimes which if committed within this state would be felonious, commits a felony, other than murder, first or second degree, or treason, within this state, shall be sentenced upon conviction of such fourth, or subsequent, offense to imprisonment in a state prison for an indeterminate term the minimum of which shall be not less than the maximum term provided for first offenders for the crime for which the individual has been convicted, but, in any event, the minimum term upon conviction for a felony as the fourth or subsequent, offense, shall be not less than fifteen years, and the maximum thereof shall be his natural life. * * *"
Of three prior felony convictions charged in the information — all of which were committed in foreign jurisdictions — one was the conviction of the relator on May 3, 1935, in a New Jersey court of an escape from Leesburg Prison Farm. For that escape he was sentenced to a term of one to three years to commence upon completion of the prison term he was then serving. The relator acknowledged that he was the same person described in the information and did not deny that the three prior convictions with which he was charged would have been felonies if committed within the State of New York. Thereupon he was sentenced, under Penal Law, section 1942, to a State prison for a term of "not less than 15 years, nor more than life." *544
At the Appellate Division it was ruled that the operation of Penal Law, section 1942, is in no way limited by section 1699 when, as in the present case, a sentence is imposed for a subsequent felony of a different type. It is said that "The only effect of section 1699 of the Penal Law is to limit the punishment for the crime of escape." (
We do not so construe section 1699 which is within article 162 of the Penal Law setting forth certain statutory requirements as to the treatment to be accorded prisoners in custody and those who have escaped. The statute here in question provides: "§ 1699.Punishment Upon Conviction of a Felony Committed in Violation ofThis Article. A person convicted of a felony as defined by any provision of this article is punishable by imprisonment for not less than one year nor more than seven years and the provisionsof sections nineteen hundred forty-one and nineteen hundredforty-two of this chapter shall not apply to such a conviction." (Emphasis supplied.)
Noting that by its last clause section 1699 provides "that sections 1941 and 1942 shall not apply to `such a conviction'", the Appellate Division suggests that "Had the word `sentence' been used, instead of the word `conviction,' the application of the section would be clearer." (
The statutes with which we are dealing, being penal in character, must be strictly construed. Their scope is not susceptible to limitation or extension by judicial interpretation to cover cases not clearly within the expressed legislative intent. (People v. Nelson,
A person is entitled to unequivocal statutory warning of the fact that under existing law in this State (Penal Law, §§ 1941, 1942) a prior felony conviction will serve to increase the punishment for a subsequent felony. For that reason in the present case, where Penal Law section 1699 is the subject of interpretation, we give to its mandate "that construction which operates in favor of life or liberty". (Commonwealth vs.Martin,
The order should be reversed and the proceeding remitted to the County Court for further proceedings not inconsistent with this opinion.
LOUGHRAN, CONWAY, DESMOND, THACHER and DYE, JJ., concur; LEHMAN, Ch. J., taking no part.
Ordered accordingly.