Dodd v. Martin

Decision Date12 June 1928
PartiesDODD, Dist. Atty., v. MARTIN, County Judge, et al.
CourtNew York Court of Appeals Court of Appeals
OPINION TEXT STARTS HERE

Application by Charles J. Dodd, as District Attorney of Kings County, for a peremptory mandamus order, to be directed to George W. Martin, individually and as County Judge of Kings County, and others. From an order of the Appellate Division (224 App. Div. 179, 229 N. Y. S. 131) affirming an order of the Special Term which granted the application, defendants appeal.

Order affirmed.

Cardozo, C. J., and Lehman and Kellogg, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Second Department.

Harry G. Anderson, of New York, City, and Ralph E. Hemstreet, of Brooklyn, for appellants.

Charles J. Dodd, Dist. Atty., of Brooklyn (Henry J. Walsh, of Brooklyn, of counsel), for respondent.

POUND, J.

On an indictment charging Fred Taglerine with the crimes of burglary, third degree, and attempted grand larceny in the second degree as a second offense, the Kings County Court on October 21, 1926, accepted a plea of guilty to the crime of burglary in the third degree as a first offense. The defendant was convicted on this plea. The increased punishment for a second offender is indicated by Penal Law (Consol. Laws, c. 40), section 1941. Before sentence was pronounced, the court was informed by the defendant that he had been previously convicted of a felony. He was sentenced as a first offender to a term of imprisonment in Sing Sing Prison for two years and six months. He began to serve his term. When it became known to the warden of Clinton Prison, to which defendant had been transferred, that the prisoner had been previously convicted of a felony, he reported the fact to the district attorney of Kings county as required by section 1943 of the Penal Law as added, as a part of the Baumes Laws, by chapter 457, Laws of 1926. The district attorney thereupon filed an information accusing the prisoner of such previous conviction. The prisoner was then brought before the court under the provisions of section 1943 of the Penal Law relative to resentencing. The county judge ordered the original plea of guilty set aside, accepted a plea of guilty to the crime of petit larceny, and sentenced the prisoner to a term of imprisonment in the county jail for nine months.

After judgment on a plea of guilty and the beginning of the term of imprisonment the court was without jurisdiction to permit the defendant to change his plea. Code Cr. Proc. § 337; Penal Law, § 2188; People ex rel. Woodin v. Ottaway, 247 N. Y. 493, 161 N. E. 157. This rule is not challenged in this proceeding.

The district attorney has obtained an order of peremptorymandamus requiring the county judge and the County Court of Kings County to reinstate the plea of guilty and to proceed under section 1941 of the Penal Law to try the issue if any presented on the information and to re-sentence the prisoner.

The question is whether the original sentence was legal. The Baumes Laws were carefully considered in great detail in People v. Gowasky, 244 N. Y. 451, 155 N. E. 737. Previous convictions need no longer, as previously, be alleged in the indictment. Penal Law, § 1942. When the defendant is convicted, he may be for the first time confronted with his record. If it then appears that he is a second offender he is sentenced to the severer punishment. ‘The old practice,’ said Crane, J., in the Gowasky Case (page 460 ), ‘is still permissible.’ But the prisoner was not tried on the indictment charging him as a second offender. He pleaded guilty to burglary, third degree, as a first offense. The plea is separable. It contains two elements, a plea of guilty and a denial of a prior conviction. The guilt is of the crime of burglary in the third degree; the remainder of the plea is descriptive of the character of the offender.

There are three kinds of plea to an indictment: Guilty, not guilty, and former conviction or acquittal. Code Cr. Proc. § 332. A plea may be accepted of guilty to any lesser crime than that charged in the indictment. Code Cr. Proc. § 334. The crime charged in the indictment is not lesser or greater because the punishment is lesser or greater by reason of the presence or absence of prior convictions. It remains the same without regard to the past criminal record of the defendant. The crime, when committed by a first offender, is not a ‘lesser crime than that charged in the indictment’ when the indictment charges a second offense. Code Cr. Proc. § 334, par. 2. I find nothing in People v. Sickles, 156 N. Y. 541, 51 N. E. 288, which necessarily holds the contrary. The case goes no further than to say that under the old law, first, ‘the indictment of the person accused of being a second offender must bring the case within the statute, by setting forth the facts depended upon for the imposition of the severer punishment prescribed by the Penal Code; and, secondly, that ‘the question for the jury to determine is whether the defendant is guilty of the present...

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24 cases
  • People v. Broadie
    • United States
    • New York Court of Appeals Court of Appeals
    • 18 June 1975
    ...v. Brophy, 287 N.Y. 132, 136, 38 N.E.2d 468, 471, cert. den. 317 U.S. 625, 63 S.Ct. 62, 87 L.Ed. 506; Matter of Dodd v. Martin, 248 N.Y. 394, 398--399, 162 N.E. 293, 294; Peop v. Gowasky, 244 N.Y. 451, 466, 155 N.E. 737, 744). That courts may believe that the Legislature is mistaken, does n......
  • People v. Santiago
    • United States
    • New York Supreme Court — Appellate Division
    • 31 December 1975
    ...194 N.E. 764, 766; People ex rel. Forsyth v. Court of Sessions of Monroe County, 141 N.Y. 288, 36 N.E. 386; Matter of Dodd v. Martin, 248 N.Y. 394, 398--399, 162 N.E. 293, 295; People v. Gowasky, 244 N.Y. 451, 155 N.E. 737; cf. Matter of Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 p.2d 921)......
  • People v. Smith
    • United States
    • New York Court of Appeals Court of Appeals
    • 2 July 1984
    ...263, 100 S.Ct. 1133, 63 L.Ed.2d 382; People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, supra; Matter of Dodd v. Martin, 248 N.Y. 394, 398-399, 162 N.E. 293; People v. Gowasky, 244 N.Y. 451, 466, 155 N.E. 737), and although bifurcation may be a desirable procedure, it is no......
  • State v. Hingle
    • United States
    • Louisiana Supreme Court
    • 6 November 1961
    ...v. Habighorst, 163 La. 552, 112 So. 414. Cf. Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917; Dodd v. Martin, 248 N.Y. 394, 162 N.E. 293; People v. Gorney, 203 Misc. 512, 103 N.Y.S.2d 75.3 State v. Guidry, 169 La. 215, 124 So. 832; State v. Hardy, 174 La. 458, 141......
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