People v. Fink
| Decision Date | 13 January 1972 |
| Parties | , 278 N.E.2d 904 The PEOPLE of the State of New York, Respondent, v. James Arvid FINK, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Francis R. Paternoster, Walton, for appellant.
Palmer J. Kennedy, Dist. Atty., for respondent.
In 1940, petitioner was charged with a triple murder and arson in Delaware County. Although considerable newspaper publicity accompanied these charges, no attempt was made to change the venue of the trial. Petitioner, after consulation with his counsel, pleaded guilty to the reduced charges of three counts of second degree murder and one count of second degree arson, and was sentenced to consecutive sentences of 20 years to life on each murder count and 10 to 20 years on the arson count.
Petitioner now argues: (1) that the pre-plea publicity should have the effect of vitiating his guilty plea, requiring the vacating of his sentence (People v. Sepos, 16 N.Y.2d 662, 261 N.Y.S.2d 293, 209 N.E.2d 285); or, (2) that the imposition of consecutive sentences was a denial of due process, and that the sentences should be altered to run concurrently.
Special Term, after a hearing on the issue of whether the pretrial publicity was so lurid and extensive as to preclude the right to a fair trial and cause petitioner's plea of guilty, determined that the petitioner pleaded guilty to the reduced charge of murder, second degree, to escape the possibility of far harsher punishment--the death penalty--and not because of the notoriety given the case by the press. This factual finding was affirmed by the Appellate Division, 35 A.D.2d 876, 315 N.Y.S.2d 671, and, hence, our review is limited. Since we find there was sufficient evidence to support the findings below, there is no basis for the vitiation of petitioner's plea of guilty.
The consecutive sentences imposed upon petitioner were, at the time of sentence, lawful and within the trial court's discretion. (Former Penal Law, § 1048.) Moreover, the consecutive sentences did not eliminate, as petitioner contends, any possibility for parole. (See former Penal Law, § 1945, subd. 7 1 ans Correction Law, former § 212 2.) The Parole Board has, on at least two occasions since 1960, considered petitioner for parole, but failed to take favorable action. The courts, of course, do not review the action of the board--in releasing or refusing to release prisoners--if in accordance with law. (Matter of Hines v. State Bd. of Parole, 293 N.Y. 254, 257, 56 N.E.2d 572, 573.)
It should be pointed out, however, that the petitioner may also seek relief through the Executive Law (art 2--A, §§ 15--19). These provisions make available to the petitioner relief by way of executive clemency.
The order of the Appellate Division should be affirmed.
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