People v. Potskowski

Decision Date02 December 1948
Citation83 N.E.2d 125,298 N.Y. 299
PartiesPEOPLE v. POTSKOWSKI et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Third Department.

Peter E. Potskowski, Pasquale M. Capuano and Carl H. LaDue were convicted of assault in the second degree, in the Essex County Court, Wickes, J., and they appealed. From an order of the Appellate Division, 273 App.Div. 1048, 79 N.Y.S.2d 164, entered June 23, 1948, which modified on the law and facts the judgment of the Essex County Court by reducing the crime of assault in the second degree as to Edward Potskowski and Pasquale M. Capuano, to assault in the third degree, and reversing the conviction of Carl H. LaDue and dismissing the indictment as against him, the People of the State of New York, by permission of the presiding justice of the Appellate Division, appeal, and the defendants move to dismiss the appeal on ground that the Court of Appeals had no jurisdiction for the reason that the certificate of the presiding justice was obtained ex parte, that notice of appeal to Court of Appeals did not specify from what judgment the appeal was taken, that a subsequent notice of appeal was not filed within 15 days after the certificate was granted, and that Court of Appeals had no jurisdiction to pass on questions of fact involved in the case.

Motion to dismiss appeals denied, order of Appellate Division modified by reinstating convictions of assault in second degree as to Peter E. Potskowski and Pasquale M. Capuano and case remitted to Appellate Division for consideration of fitness of sentences imposed by trial court, and, as to Carl H. LaDue, order of Appellate Division reversed, indictment reinstated, and new trial ordered. Daniel T. Manning, Dist. Atty., of Au Sable Forks (Harold R. Soden, of Lake Placid, of counsel), for appellant.

James A. Leary, Walter A. Fullerton and Michael E. Sweeney, all of Saratoga Springs, and B. Gregory Brewster, of Port Henry, for respondents.

LOUGHRAN, Chief Judge.

After trial in the County Court of Essex County the three defendants Potskowski, Capuano and LaDue were convicted of assault in the second degree. Each was sentenced to imprisonment for not less than one year and three months nor more than two years and a half, and Potskowski was also fined a $1000. On appeals by all three defendants to the Appellate Division an order was entered in the following form:

‘Ordered, that said judgment of conviction as to Carl Harry Ladue be reversed on the law and facts and the indictment dismissed, and it is further

‘Ordered, that the said judgment of conviction as to the defendants Peter Edward Potskowski and Pasquale Martin Capuano be modified, on the law and facts, and the judgment of conviction in each case is reduced from the crime of assault in the second degree to the crime of assault in the third degree, and it is further ‘Ordered, that the judgment of conviction as to these two defendants be that the sentence in each case be reduced to the time which they have already served in Clinton Prison at Dannemora, New York, and each of the defendants is discharged from further imprisonment, and it is further

‘Ordered, that, in the case of the defendant Peter Edward Potskowski, the fine is reduced from the sum of $1,000.00 to the sum of $500.00 and upon non-payment of such fine that said defendant is directed to serve one day for each one dollar of the fine unpaid in the County Jail of Essex County.’

This order is now before us for review on a certificate which was validly granted ex parte to the People by the Presiding Justice of the Appellate Division. See Code Cr.Proc. s 520, subd. 3; People v. McCarthy, 260 N.Y. 358, 165 N.E. 810.

There was evidence that on the occasion in question the three defendants, acting in concert, had inflicted upon the complainant a number of ‘lacerated, jagged and bleeding’ wounds in consequence of which he was confined to his room for several weeks. There was also medical expert testimony which characterized the complainant's injuries as ‘severe’ and ‘grievous' and ‘not minor in nature’. In that state of the proof a jury could readily and fairly say that the three defendants by their concerted action had ‘wilfully and wrongfully wounded or inflicted grievous bodily harm upon another, either with or without a weapon’ and thus were guilty of assault in the second degree under section 242 of the Penal Law, Consol.Laws, c. 40.

Hence the Appellate Division erred when it dismissed the indictment in the case of the defendant LaDue and in his case there must be a new trial. See People v. Bellows,...

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18 cases
  • People v. Alvarez, 13
    • United States
    • New York Court of Appeals
    • March 28, 2019
    ...(see People v. Speiser, 277 N.Y. 342, 14 N.E.2d 380 [1938] ; People v. Rytel, 284 N.Y. 242, 30 N.E.2d 578 [1940] ; People v. Potskowski, 298 N.Y. 299, 83 N.E.2d 125 [1948] ; see also Gerhard O. W. Mueller, Penology on Appeal: Appellate Review of Legal but Excessive Sentences , 15 Vand. L. R......
  • People v. Alvarez, 13
    • United States
    • New York Court of Appeals
    • March 28, 2019
    ...(see People v. Speiser, 277 N.Y. 342, 14 N.E.2d 380 [1938] ; People v. Rytel, 284 N.Y. 242, 30 N.E.2d 578 [1940] ; People v. Potskowski, 298 N.Y. 299, 83 N.E.2d 125 [1948] ; see also Gerhard O. W. Mueller, Penology on Appeal: Appellate Review of Legal but Excessive Sentences , 15 Vand. L. R......
  • People v. Fudge
    • United States
    • United States State Supreme Court (New York)
    • August 26, 2021
    ...People's argument would effectively nullify CPL 470.15 (6) (b) (cf. People v Pollenz, 67 N.Y.2d 264, 267-270 [1986]; People v Potskowski, 298 NY 299, 303 [1948]). Contrary to the People's view, the Second Department's decision in People v DeMent (144 A.D.2d 690, 690 [2d Dept 1988], lv denie......
  • People v. Fudge
    • United States
    • United States State Supreme Court (New York)
    • August 26, 2021
    ...... interest of justice. Indeed, by presuming the. appropriateness of a sentence due simply to its. legality , the People's argument would. effectively nullify CPL 470.15 (6) (b) ( cf. People v. Pollenz , 67 N.Y.2d 264, 267-270 [1986]; People v. Potskowski , 298 NY 299, 303 [1948]). Contrary to the. People's view, the Second Department's decision in. People v DeMent (144 A.D.2d 690, 690 [2d Dept 1988],. lv denied 73 N.Y.2d 890 [1989]) in no way supports. their conception of the Appellate Division's. sentence-review ......
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