66 N.Y.2d 629 | NY | 1985
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed.
In People v Wright (35 NY2d 944, cert denied 423 US 856) we affirmed on the opinion by Justice Irwin D. Davidson at Trial Term. That opinion (69 Misc 2d 1050, 1051) stated with respect to the Practice Commentary (the Commission Staff Notes apparently were not cited to him) that: "The commentator’s authority to support that statement does not appear. It seems to be inconsistent with the provisions of the statute. While it is quite true that a prior felony conviction upon which a defendant was sentenced to probation or conditional or unconditional discharge would not meet all the prerequisites of a prior felony conviction outlined in section 70.10 insofar as this comment refers to a reformatory sentence imposed for a felony upon which the defendant served in excess of one year, it seems to be in direct conflict with the provisions of 70.10.” Defendant seeks to distinguish Wright on the basis that it involved a 1959 prior felony conviction, as to which, under Penal Law former § 2184-a as amended by Laws of 1956 (ch 839), a felon sentenced to the reformatory could be incarcerated for a period not to exceed five years, that Wright would have been on notice at the time of his later crime that his 1959 conviction could be employed as a predicate, and that, therefore, it was proper for the sentencing court in 1972 to use his 1959 reformatory sentence as a prior.
Accepting, arguendo, that Wright would have been on notice, we nevertheless find the distinction to be one without a differ
It is the language of the statute itself, rather than statements in the Reviser’s Notes or in a Practice Commentary, which governs its construction (Matter of Lorie C., 49 NY2d 161, 169; see, Anderson v Regan, 53 NY2d 356; McKinney’s Cons Laws of NY, Book 1, Statutes § 125 [b]). We agree with Justice Davidson’s construction of Penal Law § 70.10 as to a pre-1965 reformatory sentence and find it equally applicable to a post-1965 reformatory sentence.
We have reviewed the Trial Judge’s identification charge and find it sufficiently detailed to meet the requirements of People v Whalen (59 NY2d 273).
Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.
Order affirmed in a memorandum.