179 Misc. 899 | N.Y. Sup. Ct. | 1942
The relator by means of this habeas corpus proceeding asserts a grievance which is frequently before the courts. He claims as of right he should have been sentenced under the Penal Law to a fixed term the maximum of which has expired and he is entitled to be discharged.
Three grounds are urged, as follows:
1. The facts of his previous criminal record establish that the offender is not a fit person for correction and reformation in the penitentiary or other institution of imprisonment under the Parole Commission Law [L. 1915, ch. 579, as amd.] as now incorporated in the Correction Law [§ 200 et seq.]. It was therefore mandatory upon the sentencing court to impose sentence under the Penal Code.
2. The sentencing judge or court in order to impose a longer term than that authorized by the provisions of the Penal Law
3. All offenders sentenced to the penitentiary whether for definite terms under the Penal Law or the indeterminate periods under the Parole Commission Law are subjected to identical treatment. There is in fact no correctional and reformatory method under which the offender receives any benefit. He is subjected to longer incarceration and loses benefits provided under the Penal Law for time in prison awaiting trial and time allowance for good behavior. The result is solely punitive and not in any measure reformatory.
Relator in addition contends he was extradited from Massachusetts upon an indictment for forgery and petit larceny, and was induced to plead guilty to the count of petit larceny on an assurance of receiving a suspended sentence, and could only be punished by a sentence under the Penal Law to the city penitentiary for a term not exceeding one year. The record shows no such assurance and relator’s unsupported statement is of no value on a matter often claimed and seldom, if ever, proved. Procedure exists under which the offender could have protected himself and required that the record clearly show what took place. Claimed ignorance of procedure is not helpful. The court ordinarily must'be guided by the record.
The sentencing court committed the offender to the New York City Penitentiary, there to be dealt with according to law, i. e. pursuant to section 203 and other provisions of the Correction Law. A definite sentence under the Penal Law would have resulted in a lesser period of incarceration, for the reason that although the commitment was for an indefinite term not to exceed three years, the Parole Commission with the approval of the sentencing judge fixed the tentative minimum for release at thirty months.
Sentence under the Correction Law, section 203 (L. 1939, ch. 661, § 1, formerly Parole Commission Law, L. 1915, ch. 579), in the absence of a more definite expression has been
If, as asserted, no facilities exist at the penitentiary for other than identical treatment, and all inmates, regardless of sentence or commitment, are confined in the same place which is both penitentiary and workhouse, and neither class of inmate is separated from the other, the interest of the court is stirred, and undoubtedly the public interest ultimately may become aroused; but jurisdiction of the court in habeas corpus is not the remedy. Separation of inmates for correction and reformation in different sections of the same building, or different buildings, might solve the difficulty, but the problem is one for the other branches of government and not for the courts.
A criminal record, however, is insufficient of itself to establish that an offender cannot be reformed.
Section 203 of the Correction Law which re-embodied provisions of the Parole Commission Law, reads in part as follows:
“ (a) After the creation of a parole commission pursuant to this article any person convicted of any crime or offense punishable by imprisonment in a penitentiary, workhouse, city prison, county jail or other institution under the jurisdiction of the department of correction of the city if sentenced to any institution under the jurisdiction of the department of correction in such city shall be sentenced and committed to a penitentiary or a workhouse or a reformatory under the jurisdiction of such department.
“(b) The court in imposing sentence shall not fix or limit the term of imprisonment of any person sentenced to any such penitentiary. The term of such imprisonment shall be terminated in the manner prescribed in section two hundred four of this article and not otherwise, and shall not exceed three years.”
Sections 1299 and 1937 of the Penal Law, under which relator claims he should have been sentenced, read as follows:
“§ 1299. * * * Petit larceny is a misdemeanor. ”
“ § 1937. Punishment of misdemeanors when not fixed by statute. A person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially, prescribed by this chapter, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both.” The language of the latter section does not provide an exclusively controlling sentence which was mandatory upon the sentencing court.
As the above provisions of the Penal Law are not exclusively controlling, the question of committing the offender to an indeterminate term under the Correction Law, rather than imposing a sentence of a fixed term under the Penal Law, was discretionary with the sentencing court. (People v. Bendix, 260 N. Y. 590, affg. 235 App. Div. 837.) A finding that an offender is capable of substantial benefit by correctional and reformatory treatment is not required to be incorporated into the record of the sentence. (People v. Thompson, 251 N. Y.
Writ dismissed and prisoner remanded.