256 A.D. 508 | N.Y. App. Div. | 1939
By this appeal we are asked to determine whether a suspended sentence in a foreign State constitutes a conviction under section 1941 of the Penal Law. That section requires mandatory sentence as second or third offenders for persons previously convicted of crimes which amount to felonies here, whether committed here or in another State.
On January 31, 1938, defendant pleaded guilty in the Court of General Sessions of the County of New York to the crime of arson in the third degree. Thereafter, on February 8, 1938, before sentence, an information was filed charging him with being a second offender under section 1941 of the Penal Law in that in 1936 he had pleaded guilty in the Oyer and Terminer Court, Monmouth county, N. J., and had been placed on probation for two years. The charge there was stealing a twelve-dollar check, forging the payee’s name and cashing the check, for which he was indicted for forgery.
Defendant in the Court of General Sessions admitted that he was the same person mentioned in the New Jersey information, but denied the crime was a felony in New York and contended that his New Jersey plea of guilty and suspended sentence did not constitute a prior conviction and accordingly that he should be sentenced not as a second but only as a first offender. If sentenced as a first-offender, the maximum punishment would be seven and one-half to fifteen years; if as a second offender, the minimum punishment would be not less than fifteen nor more than thirty years.
The trial court dismissed the information and sentenced defendant as a first offender to State prison for not less than seven nor more than fourteen years. The court held that section 470-b of the Code of Criminal Procedure was not applicable to the New Jersey plea of guilty upon which sentence was suspended, and that accordingly such plea and such suspended sentence was not a prior conviction and did not make defendant a second offender for the purpose of sentence.
The People appeal and urge that the intention of the Legislature was that a suspended sentence, whether received in New York or elsewhere, should be regarded as a conviction and that section 1941 of the Penal Law and section 470-b of the Code of Criminal Procedure should be read together according to their fair import to effect the object of the law.
The crime to which defendant pleaded guilty in New Jersey would be a felony if committed in New York. He was there charged
The relevant provisions of the statutes relating to the real issue on appeal are:
Penal Law, section 1941: “ A person, who, after having been once or twice convicted within this State, of a felony, of an attempt to commit a felony, or, under the laws of any other State, government, or country, of a crime which, if committed within this State, would be a felony, commits any felony, within this State, is punishable upon conviction of such second or third offense, as follows.”
Code of Criminal Procedure, section 470-b:
“ If judgment be not pronounced as in the last section provided, nevertheless:
“1. For the purpose of indictment and conviction of a second offense, the plea or verdict and suspension of sentence or suspension of execution of the whole or a part of the judgment after sentence shall be regarded as a conviction, and shall be pleaded according to the fact.”
Defendant contends that section 1941 by its express terms requires a conviction under the laws of a foreign State before the defendant is subject to punishment as a second offender in this jurisdiction; that section 470-b by its title and its introductory language expressly refers to the prior section, 470-a, which by its terms relates to suspended sentences imposed and revoked by the courts of New York State, and, therefore, 470-b refers only to unrevoked suspended sentences of such courts and not of the courts of foreign States. Section 470-a provides, inter alia, that after a plea of guilty and a suspension of sentence the court may impose any sentence which might have been imposed at the time of conviction and may impose sentence at any time after suspension thereof within the longest period for which the defendant might have been sentenced. Section 470-b immediately following has the title “ Effect thereof,” that is, referring back to the previous section, and then provides that “ If judgment be not pronounced as.in the last section provided,” nevertheless for the purpose of indictment and conviction as a second offense a suspension of sentence shall be regarded as a conviction. It was by reason of this reference in 470-b and 470-a that the trial court held that 470-b was not applicable.
Section 470-b is not expressly limited to cases wherein sentence has been suspended by the courts of this State, and its purpose is to define the term “ conviction ” as used in section 1941 so as to
Section 470-b of the Code of Criminal Procedure treats a suspended sentence as a conviction within the meaning of section 1941 of the Penal Law which expressly relates to all convictions of felonies whether in this State or any other State. The clear intent of the
The conviction should be affirmed, the order dismissing the information reversed and the information reinstated, and the defendant remanded for sentence as a second offender in accordance with this opinion.
Martin, P. J., O’Malley, Glennon and Callahan, JJ., concur.
Conviction unanimously affirmed, the order dismissing the information reversed and the information reinstated, and defendant remanded for sentence as a second offender in accordance with opinion. Settle order on notice.