130 Misc. 821 | New York County Courts | 1927
This opinion is rendered on objections raised by the defendant to fourth offender resentence proceedings under section 1943 of the Penal Law (as added by Laws of 1926, chap. 457).
As a foreword. A previous opinion (not reported) and holding by this court in the same matter, although generally dealt with in a. spirit of truth, was the subject of widespread distortion in certain publications. The court, therefore, states at the outset that the questions here raised do not involve the recent statutory amendments increasing punishment for serious crimes; nor are the bulk of the amendments which are procedurally reformative in anywise affected. This is not an “ attack ” on any law or group of laws.
The questions to be decided center on the legal and constitutional rights of defendants who have been adjudged guilty under compromise of prior offender indictments; also on the correct interpretation of the fourth offender statute. These questions will be decided according to law. This word of caution is given for the reason that any exaggeration or distortion of the court’s decision may be calculated to encourage perpetrators of crime, by giving them a false notion of security. Such a situation is to be deplored and invites the heartiest co-operation to the end that accuracy of publication be adhered to.
The defendant was indicted for the crime of “ grand larceny in the second degree, as a second offense,” for having misappropriated $116.75 which he had in his possession as an employee of a coal and ice company. The prior conviction charged in the indictment was as a second offender, so that the indictment in effect charged two prior felony convictions. The defendant pleaded not guilty and was held for trial. Upon being later brought to trial, the
Thereafter, and while defendant was serving his sentence, the district attorney filed a supplemental information under Penal Law, section 1943, in which he charged the defendant with his three alleged prior felony convictions and asked that the defendant 'be recalled for resentence to a life term in accordance with Penal Law, section 1942 (as amd. by Laws of 1926, chap. 457). The prior convictions charged were those heretofore referred to.
The court denied the application upon the ground that the defendant had been legally sentenced, and could not be legally resentenced.
In mandamus proceedings wherein this court sought to obtain an appellate court review of the resentence question, the technical point was raised that this court should not have refused to resentence without first going through the statutory ritual of bringing the defendant down from Sing Sing for arraignment. The Appellate Division accordingly declined to pass on the main question, and under its direction this court has caused the defendant to be brought down from Sing Sing for arraignment. (See Matter of Dodd v. Taylor, 218 App. Div. 862.)
The defendant being arraigned under Penal Law, section 1943, remained mute as to the fourth offense charge, and through his counsel raised several objections involving his constitutional and statutory rights, and challenged the right of the court to impose resentence. A jury having been impanelled and sworn, the court recessed in order to rule on the defendant’s motions and objections. These will now be taken up.
The first objection is based on the constitutional question of former jeopardy. (State Const, art. 1, § 6.) This objection appears to
The second objection is that the district attorney having elected to proceed by prior offender indictment cannot now be heard to avail of the special prior offender procedure set forth in Penal Law, section 1943. Reference to the decisions on this point shows this objection to be well taken. Section 1943 is "new to this State, but it was taken from the statutes of Massachusetts and West Virginia. Referring to the constructional history of the Massachusetts statute, we find that this precise point was adjudicated in Plumbly v. Commonwealth (43 Mass. 413) and Commonwealth v. Phillips (28 id. 27). In the former decision we find the following (pp. 415, 416): “ But it is obvious, if the law merely provided that the additional punishment should be awarded on the conviction, that the convict would often escape, because the fact of - such former conviction was not known to the prosecuting officer. It will often occur that such fact will not be known to any one competent to bring it to the notice of a court, until the prisoner is actually recommitted to the State prison, and there recognized by its officers. In order to adapt the law to these two cases, the statute provides an alternative mode of proceeding; either to insert an averment of the former conviction or convictions in the indictment, and prove the averment as part of the indictment, in which case the whole punishment will be awarded by the court before whom the conviction is had; or by an information in legal form, filed by the law officer of the Commonwealth, on notice given him by the warden of the State prison, or otherwise. Both cannot be pursued, to obtain one and the same object; and as the conviction must of necessity be first in time, if the former convictions are then proceeded upon, it necessarily supersedes the other. Nothing remains for an information to reach.” A similar statute in West Virginia was construed on the same point by the court of last resort. (Graham v. West Virginia, 224 U. S. 616.) In the opinion we find (p. 626): “It is to prevent such a frustration of its policy [referring to unknown prior convictions], that provision is made for alternative methods; either by alleging the fact of prior conviction in the indictment and showing it upon the trial, or by a subsequent proceeding in which the identity of the prisoner may be ascertained and he may be sentenced to the full punishment fixed by law.” In that case the procedure was by information subsequent to conviction. The
“ Resentencing of Second Offenders. . There are times when a defendant is found guilty of the offense for which he has been tried without its being known by the prosecuting officers or the court that it is the second criminal offense of which he is guilty., Perhaps the facts were not known when the indictment was drawn. He receives a sentence based on the supposition that he is a first offender and is so entitled to the lessened penalty accorded by the statutes to such a one. After starting to serve this sentence, it is discovered that he is a second offender — a criminal of the worst character, may be deserving of much more severe punishment. Society should be protected and the criminal receive his just dues. We approve the suggestion that provides for the court sending for such a prisoner and resentencing him in accordance with his new found criminal history and recommend appropriate, carefully prepared legislation.” ' Section 1943 was adopted pursuant to this recommendation.
The third objection is upon the ground that the life term for fourth offenders is discretionary, not mandatory, and that, therefore, the court was within its rights in refusing to impose a life sentence. The court takes to this view. The fourth offender statute (Penal Law, § 1942) was enacted in 1907. It is not a “ Baumes ” statute at all. For the last twenty years that statute has provided that upon a fourth felony conviction a defendant “ shall ” receive a life sentence. During all of that time no appellate court appears to have passed on whether or not that statute is mandatory. Certain minor or procedural, amendments
The fourth objection is that the State may not be heard to repudiate the arrangement between the district attorney and the defendant for a first offender conviction. This point was passed
The fifth objection is that the State is estopped from invoking the prior offender procedure provided by section 1943. The basis of estoppel in pais is that the party against whom the estoppel is urged has by his own act or omission caused another to put himself in a position from which he cannot retreat without loss. Such is the case where a defendant is induced by a prosecuting official to withdraw a plea of not guilty and put in a compromise plea. The elements of estoppel being present must be recognized and enforced.
The sixth objection is on the ground that under the State Constitution a conviction may not be had other than on indictment or presentment of a grand jury. (State Const, art. 1, § 6.) In its previous opinion herein this court cited a line of authorities tending to sustain the view that inasmuch as a prior offender crime is a different crime from a first offender crime, the precise element of prior offender should be alleged in the indictment. (People v. Rosen, 208 N. Y. 169; People v. Sickles, 156 id. 541; Johnson v. People, 55 id. 512; Wood v. People, 53 id. 511; People v. Powers, 6 id. 50; People v. Allen, 5 Den. 76; Bishop Crim. Pro. 505, 625, 633, 635, and note; 3 Greenl. Ev. 10. See, also, People ex rel. Cosgriff v. Craig, 195 N. Y. 190.) At that time, however, this court declined to pass on the point, and for the reason then stated will not do so now. A West Virginia statute similar to section 1943 of our Penal Law was passed on by the court of last resort, and was held to be constitutional. (Graham v. West Virginia, 224 U. S. 616.) The trouble with the Graham case is that, so far as appears from the report, the precise constitutional point raised by this objection was not passed upon. The case turned on a different constitutional point, to wit, due process of law under the Federal Constitution. The opinion explicitly states, thereby expressing a well-settled rule of Federal review: “ The questions raised under the Constitution of the State are not open here.” However, it may reasonably be doubted if any court short of the supreme tribunal of the State may be induced to distinguish the Graham case and rule affirmatively on the subject-matter of this objection.
Several further objections are raised, but in the absence of submission of authorities the court is not disposed to sustain them.
Having above indicated the manner in which the court will rule on the various points raised by the defendant, the court faces a procedural difficulty which must be met and overcome. The court