Records reflect that the accused, a lawyer 30 years of age, was indicated on four counts of Grand Larceny, Second Degree, by reason of obtaining money by false pretenses in connection with certain settlements of lawsuits. He pleaded guilty to the one criminal count involved herein.
He now applies for a certificate of reasonable doubt pending his appeal to the Appellate Division of the Supreme Court from a judgment of conviction of the crime of Grand Larceny, Second Degree, more specifically from the sentence imposed, that he ‘be imprisoned in Sing Sing Prison under an indeterminate sentence, the maximum of such imprisonment to be two years and the minimum one year’.
The first question to be disposed of is whether the Appellate Division of the Supreme Court has the power to change, lower, or suspend the criminal sentence in this case. However, at the very outset it is clear, without unnecessary argumentation, that the Appellate Division does have the power to reduce the maximum sentence; in fact, the District Attorney’s brief with commendable candor states that ‘there is no question but that the Appellate Division has the power to reduce the maximum term imposed upon the accused by the County Court’.
In respect to the other phases of the Appellate Division’s power to lessen or suspend the sentence in this case, an affirmative answer is found, among others, in People v. Zuckerman, the court said: ‘Under section 543 of the Code of Criminal Procedure, implementing section 8 of article VI of the State Constitution, ‘the Appellate Division has complete jurisdiction to reduce the sentence’. The only express limitation upon the power is that the Appellate Division may not reduce a sentence imposed to a sentence ‘lighter than the minimum penalty provided by law for an offense’. No minimum is prescribed by section 1935 of the Penal Law, which prescribes the punishment for violations of section 1897. This power has frequently been exercised.
In the Potskowski case, the court said: ‘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.Proc., section 543, subd. 1. Assault in the second degree, to be sure, may be punished by imprisonment in a State prison, and, where such imprisonment is imposed, a minimum term of one year is mandatory. Penal Law, section 2182, subd. 2. Even so, such punishment is not dictated by the applicable statute, which says: ‘Assault in the second degree is punishable by imprisonment in a penitentiary or state prison for a term not exceeding five years, or by a fine of not more than one thousand dollars, or both’ Penal Law, section 243. These words, it will be observed, prescribe no minimum term of sentence. Consequently a modification operating only as a mitigation of a sentence for assault in the second degree would be within the power of the Appellate Division.’
Thus, it is clear from a reading of these two Court of Appeals’ cases and the quotations therefrom that the Appellate Division does have the power to diminish or suspend the sentence already imposed in this case.
The contention that Section 2183 of the Penal Law requires that incarceration, if imposed, must be for at least a year is not supported by the language of the section. It states: ‘Where a person is convicted of a crime punishable by imprisonment for a term exceeding one year, and is sentenced to imprisonment for such a term, the imprisonment must be inflicted by confinement at hard labor in a state prison’. A reading of that section fails to establish the requirement of at least one year or imprisonment. It merely says that if the court imposes a term exceeding one year then the confinement must be in a State prison.
Section 1297 of the Penal Law, which is involved in this case, states that ‘Grand larceny in the second degree is punishable by imprisonment for a term not exceeding five years’. Thus, it states an outside maximum of five years, but no minimum. In that respect it is similar to the statute in the Zuckerman case which involved Section 1935 of the Penal Law. That section too had an outside maximum, i. e., of seven years, but no minimum. It is also similar to the situation in the Potskowski case. Both here and there the maximum limit was five years, with no minimum mentioned.
The District Attorney urges that upon a conviction for a felony in the County a criminal defendant may be sentenced by the County Court only to a term of imprisonment in a state prison, if there is no county penitentiary. He argues further that the County Jail cannot be used for the detention of one convicted of a felony by reason of Section 500-a, subd. 4 of the Correction Law. The quick answer to this is that the defendant can always be placed in a penitentiary located in some other part of the State of New York, but in the jurisdiction and control of the New York State Department of Correction. And, furthermore, if there is a difference between those convicted in the County and those convicted in other counties as to their right to receiving lesser sentences or being sent to a penitentiary, then a clear question for review has been raised for the Appellate Division. This raises a question under the equal protection clauses of the Federal and State Constitutions.
Thus, the Appellate Division does have the right to lessen or suspend the sentence in this case; there is a question as to whether the accused has a right to have that court consider a penitentiary sentence; and that court has general control over the activities of members of the Bar.
‘The Appellate Division has jurisdiction to extend mercy to a defendant by a reduction of sentence within limits fixed by statute.’ In view of the fact that the defendant was a member of the New York Bar who was admitted to practice by the Appellate Division, that higher court might very well want to scrutinize the sentence imposed in this case. It might desire to ‘extend mercy’ to the defendant, or it might very well deem a sentence with a maximum of two years and a minimum of one year as excessive in view of the fact that the defendant was a young lawyer who had never committed a previous crime. This is not to say that the County Court’s sentence was excessive or severe. No opinion of any kind is being expressed in that respect; nor is this to say that the Appellate Division will in any way reduce, modify or change the sentence; but merely to say that under the circumstances it might do so. Therefore, while this reasonable doubt exists, this young former member of the Bar should not be compelled to exhaust in jail the term of imprisonment now imposed upon him. By the time the Appellate Division acts in this case, if it chooses to ‘extend mercy’ and to act favorably toward him, it may be too late; the term may have been served. Furthermore, the People are in no way prejudiced because if the Appellate Division chooses not to modify, change or suspend, the criminal defendant will still have to serve out his term.
Under the circumstances, a certificate of reasonable doubt is granted and he is admitted to bail, during the pendency of the appeal, upon furnishing a proper undertaking in the sum of $12,000.
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