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Defendant Appeals Sentencing


The Facts:

Defendant was employed as an assistant comptroller of a Hospital. Allegedly, a New York Criminal Lawyer said the defendant was depositing checks payable to his employer in his own checking account. Thus, he was charged with five counts of grand larceny in the second degree. An audit by the Hospital revealed, and defendant admitted, that during the period from 1967 to 1972, such defalcations amounted to approximately $68,000.

According to defendant’s memorandum, and not controverted by the prosecution, the defendant was advised between his arraignment on 27 January 1976, and his plea of guilty on 24 February 1976, that if he made satisfactory restitution to his employer’s insurance carrier he would be allowed to plead guilty to a misdemeanor in satisfaction of the indictment.

Thereafter, the surety had received completely satisfactory restitution from the defendant; had delivered a general release to him on the civil matter; and had no further interest in restitution. Thus, a New York Criminal Lawyer said the defendant withdrew his plea of not guilty and interposed a plea of guilty to petit larceny in satisfaction of the entire indictment.

Nonetheless, after the Criminal Term learned from reading the probation report that defendant had paid only $10,000 to the surety in restitution, and not the full amount of $68,000, it decided not to adhere to its previous commitment.

Defendant was then convicted of petit larceny, upon his plea of guilty, the sentence being a term of imprisonment of one year.

Defendant appeals the aforesaid judgment.

The Ruling:

It has been stated that a sentence must not only encompass the community’s condemnation of the defendant’s misconduct, but must also evaluate the possibilities of the defendant as a useful and responsible member of the community. Generally, it is the community’s gain whenever a family can be kept together as an integrated and emotionally satisfying unit with the head of the family meeting his responsibilities to it instead of unnecessarily marking time in jail.

Here, the Criminal Term, in the first instance, obviously was of the mind to follow such guideline when it stated at the taking of the plea, inter alia, that subject to reading the probation report, it would consider placing defendant on probation in view of the fact that he had made restitution to the satisfaction of the parties concerned. It had as a firm foundation for such initial intention the fact that defendant was 35 years of age, married, the father of two children, employed as an appliance salesman, and had a previously unblemished record. Nonetheless, in ultimately determining that defendant should receive a one-year prison term, the court disregarded the rehabilitative factor when it stated that rehabilitation will come when he’s come out. Instead, it based its one year sentence not on the ground that defendant should also be punished by incarceration for his transgression, but solely on the fact that only $10,000 was given by defendant as satisfactory restitution, while the insurance company paid the balance ($58,000) stolen by him. However, there is no evidence in the record that defendant, his attorney, or the attorney for the insurance company, misled the court, when, in response to the court’s query, if the amount was satisfactory, the insurance company’s attorney stated that it’s completely satisfactory. Although the court did indicate that if, after reading the probation report, it was not inclined to go along with its commitment, it would allow the defendant to withdraw his plea and go to trial, it is manifest that the court’s change of mind was not founded on any material information contained in the report, but on a pique, to wit that insurance premiums generally might somehow be affected by the defendant making restitution of only $10,000 of the amount defalcated, while the surety made good on the $58,000 balance.

In sum, the modification of sentence to a three-year-probation is not an instance of unwarranted leniency for a white collar crime. Rather, it is based on a moral commitment given by the Criminal Term and subsequently rescinded without just reason. As a rule, a court, as attorneys who practice before it, has an obligation to honor any commitment made by it, absent extenuating circumstances, regardless of a party’s race, religion, color of his skin or color of his collar.

Accordingly, the sentence is modified, as a matter of discretion in the interest of justice, by reducing it to a three-year period of probation and the case is remitted to the Criminal Term to fix the conditions of probation and for further proceedings.

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