298 N.Y. 299 | NY | 1948
After trial in the County Court of Essex County the three defendants — Potskowski, Capuano and LaDue — were convicted of assault in the second degree. Each was sentenced to imprisonment for not less than one year and three months nor more than two years and a half, and Potskowski was also fined a thousand dollars. On appeals by all three defendants to the Appellate Division an order was entered in the following form:
"ORDERED, that said judgment of conviction as to Carl Harry Ladue be reversed on the law and facts and the indictment dismissed, and it is further
ORDERED, that the said judgment of conviction as to the defendants Peter Edward Potskowski and Pasquale Martin Capuano be modified, on the law and facts, and the judgment of conviction in each case is reduced from the crime of assault in the second degree to the crime of assault in the third degree, and it is further
ORDERED, that the judgment of conviction as to these two defendants be that the sentence in each case be reduced to the time which they have already served in Clinton Prison at Dannemora, New York, and each of the defendants is discharged from further imprisonment, and it is further
ORDERED, that, in the case of the defendant Peter Edward Potskowski, the fine is reduced from the sum of $1,000.00 to the sum of $500.00 and upon non-payment of such fine that said defendant is directed to serve one day for each one dollar of the fine unpaid in the County Jail of Essex County."
This order is now before us for review on a certificate which was validly granted ex parte to the People by the Presiding Justice of the Appellate Division (see Code Crim. Pro., § 520, subd. 3; People v. McCarthy,
There was evidence that on the occasion in question the three defendants, acting in concert, had inflicted upon the complainant a number of "lacerated, jagged and bleeding" wounds in consequence *303 of which he was confined to his room for several weeks. There was also medical expert testimony which characterized the complainant's injuries as "severe" and "grievous" and "not minor in nature". In that state of the proof a jury could readily and fairly say that the three defendants by their concerted action had "wilfully and wrongfully wounded or inflicted grievous bodily harm upon another, either with or without a weapon" and thus were guilty of assault in the second degree under section 242 of the Penal Law.
Hence the Appellate Division erred when it dismissed the indictment in the case of the defendant LaDue and in his case there must be a new trial (see People v. Bellows,
The appeals that here were heard by the Appellate Division were appeals from judgments of conviction of a felony (see People v.Rytel,
The statutory words just quoted do not, however, authorize any appellate court to extend mercy to an accused by finding a lesser degree of crime than is established by the evidence, and, that being so, the reduction of the grade of the offense in the cases of the defendants Potskowski and Capuano from assault in the second degree (a felony) to assault in the third degree (a misdemeanor) was unwarranted, for the evidence herein, as we have seen, sustained the jury's finding of guilt of the higher degree of the crime (People v. Rytel, supra, 245-246). Of course, the Appellate Division has jurisdiction to extend mercy to a defendant by a reduction of sentence within limits fixed by statute (Code Crim. Pro., § 543, subd. 1; People v. Speiser,
But in the present case the reduction of the sentences of the defendants Potskowski and Capuano does not appear to have been an exercise by the court of its discretionary power merely to mitigate the punishment. As we read its order, the court reduced the sentences only as an incident of its reduction of the grade of the offense. In that view, the case against the defendants Potskowski and Capuano must be remitted to the Appellate Division for reconsideration of the sentences in accordance with this opinion (see People v. Rytel, supra, 284 N.Y. at p. 247).
In short, we dispose of these appeals as follows: As to the defendants Potskowski and Capuano, the order of the Appellate Division should be modified by reinstating the convictions of assault in the second degree and the case remitted to the Appellate Division for consideration of the fitness of the sentences imposed by the trial court. As to the defendant LaDue, the order of the Appellate Division should be reversed, the indictment reinstated and a new trial ordered. A motion to dismiss the appeals has been denied.
LEWIS, CONWAY, DESMOND, DYE and FULD, JJ., concur.
Ordered accordingly. *305