302 N.Y. 461 | NY | 1951
Defendant pleaded guilty in a Court of Special Sessions of the City of New York to each of the sixty counts of an information. The first of those counts charged a conspiracy to violate section 986 of the Penal Law (the “ book-making ” statute). Each of the following fifty-nine counts alleged a violation of section 986. Defendant was, thereafter, sentenced, on each of the first two counts, to imprisonment for one year in the penitentiary and a $500 fine, or in default of payment of the fine, thirty days additional in the city prison. On counts 3, 4 and 5, he was, in each instance, given the same sentence as for counts 1 and 2, except that the penitentiary sentence was suspended. On each of the other fifty-five counts, the punishment
Section 986 of the Penal Law is a long statute which makes guilty of a misdemeanor a person who is guilty of any one of a number of different kinds of activities and acts. Defendant would have us construe the section as if it merely prohibited the engaging in book-making, and as if all the rest of the statutory language was merely explanatory of what the Legislature meant by “ book-making ”. In other words, defendant says that this is the kind of criminal statute which penalizes not the separate doing of separate acts, but the pursuit of a business, the habitual and regular doing of certain acts as an occupation or pursuit, citing Crepps v. Durdon (2 Cowp. 640); Apothecaries Co. v. Jones ([1893] 1 Q. B. 89); Mayor of City of N. Y. v. Ordrenan (12 Johns. 122); Matter of Snow (120 U. S. 274); Ex Parte Nielsen (131 U. S. 176). But those decisions are not controlling or determinative here, since, in each of them, the statute, or part of a statute being construed, made criminal a habitual course of conduct, not specific described acts. If section 986 were, as defendant says it is, merely a prohibition against “ engaging ” in book-making, then defendant, under the authorities just above cited, would probably be right. But he puts too much stress, it seems to us, on the first separate part of section 986 which provides punishment for: “ Any person who engages in pool-selling,
The first count here charges a conspiracy continuing from 1930 up to 1950, to engage with others in book-making, in violation of section 986, the overt acts alleged being eighty-five in number and including the receipt, custody and payment of bets on various dates in 1948, 1949 and 1950. (Some of the acts described in counts 2 to 60 are the same ones which are alleged as overt acts in the first or conspiracy count.) Counts 2 to 60 are identical except for dates and each accuses defendant, on a certain date, of the crime of “ Bookmakiug, committed as follows: * * * engaged in bookmaking and made book upon the results of trials and contests of skill, speed and power of endurance of men and beasts, to wit, horse races, and received, forwarded and became the custodian and depositary for gain, hire and reward of $-, money bet and wagered by and for other persons, and aided, assisted and abetted in said acts.” In other words, each nonconspiracy or substantive count accuses defendant, on a specific separate date, with receiving, forwarding and being the custodian of, money wagered. The reference in each such count to “ bookmaking ” is, in a way, surplusage, since the remaining language alleges a complete
Besides arguing as above, defendant goes further and insists that, regardless of how many separate crimes his guilty plea covered, he could not be visited with punishment more severe than one year’s incarceration in the penitentiary, and one $500 fine. In substance, defendant is saying that, if section 279 of the Code of Criminal Procedure, allowing the joinder in one information of several crimes, and subdivision 4 of section 2190 of the Penal Law, permitting separate sentences for each such crime, are construed to permit a court of special sessions to impose, for a number of misdemeanors charged in the same information, successive sentences totaling more than one year and $500, then, according to defendant, those statutes are unconstitutional. For they violate, he says, not only section 2 of article I of the State Constitution, which declares the right to a jury trial, and section 6 of article I, which requires that infamous crimes be charged by indictment only, but also section 18 of article VI, which limits to offenses “ of the grade of misdemeanors ”, the jurisdiction of courts of special sessions. Defendant says that those provisions of our State Constitution mean that this New York City Court of Special Sessions, acting on an information rather than on an indictment, and affording no jury trial, could not impose, for a guilty plea or verdict on one information, a sentence more severe than the maximum assigned by law to a misdemeanor, that is, one year in a county jail or penitentiary and a $500 fine (Penal. Law, §§ 2, 29, 1937).
It is, of course, settled that those provisions of the New York Constitution (art. I, §§ 2, 6), which require indictment by a grand jury and give defendant a right to a trial by jury, do not apply to offenses for which the maximum punishment is no more than one year in a penitentiary plus a maximum $500 fine and which are triable, according to statute, by a court of special sessions (People v. Bellinger, 269 N. Y. 265, 270, 271). Therefore, if the statutes here being examined (Code Grim. Pro., § 279; Penal Law, § 2190) purported to authorize a trial on an information in a court of special sessions without a jury, of a criminal offense carrying heavier punishment than that assigned to misdemeanors, the statutes would to that extent be uncon
The judgment should be affirmed.
Loitghran, Ch. J., Lewis, Conway, Dye, Fold and Froessel, JJ., concur.
Judgment affirmed.