Lyons v. Robinson

• Decision Date: 19 July 1944
• Citation: 56 N.E.2d 546,293 N.Y. 191
• Parties: LYONS, Com'r of Correction, v. ROBINSON, County Judge (MANGANO, Intervener).
• Court: New York Court of Appeals Court of Appeals

293 N.Y. 191

56 N.E.2d 546

LYONS, Com'r of Correction,

v.ROBINSON, County Judge (MANGANO, Intervener).

Court of Appeals of New York.

July 19, 1944.

Appeal from Superior Court, Appellate Division, Fourth Department.

Proceeding under Civil Practice Act, section 1283 et seq., by John A. Lyons, as Commissioner of Correction of the State of New York, against George H. Rowe, as County Judge of Erie County, for an order directing respondent to vacate an order of commitment made by him and dated December 12, 1941, and reinstate a previous order of commitment dated April 2, 1937, wherein Anthony Mangano intervened. From an order of the Appellate Division, 266 App.Div. 1060, 45 N.Y.S.2d 409, entered November 17, 1943, affirming an order of a Special Term of the Supreme Court, Piper, J., denying petitioner's motion for such order, petitioner appeals by permission of the Court of Appeals. After determination of the appeal by the Appellate Division, an order was made substituting Leslie F. Robinson, as successor County Judge of Erie County, as respondent in place of the respondent originally named.

Orders reversed and petition granted. Nathaniel L. Goldstein, Atty. Gen. (Wortley B. Paul, of Buffalo, and Orrin G. Judd, of Albany, of counsel), for appellant.

Christy A. Buscaglia, of Buffalo, for intervener, respondent.

THACHER, Judge.

On April 2, 1937, the intervener was sentenced in the County Court in Erie County to serve a term of not less than three and not more than ten years and an additional term of not less than five and not more than ten years upon a plea of guilty to robbery in the second degree. The additional term of from five to ten years was imposed pursuant to section 1944 of the Penal Law upon the assumption that the crime was committed by the defendant while armed.

On April 3, 1937, the intervener was received at Attica State Prison and commenced service of his sentence. On December 11, 1941, while serving his sentence, the intervener was delivered to the custody of the Sheriff of Erie County on an order issued out of the Erie County Court directing that he be returned to the court for a hearing on the question of whether or not he was armed at the time of the commission of the crime. Such a hearing was held and testimony was taken. Thereupon it was determined that the intervener was in fact armed at the time of the commission of the crime for which he had been sentenced on April 2, 1937. Having so determined, the County Judge vacated the order of commitment made by him on April 2, 1937, and resentenced the intervener to an indeterminate term of from one year to one year and three months for the substantive crime of robbery in the second degree to which the intervener had pleaded guilty. In addition thereto he reimposed upon the intervener the term of from five years to ten years for having been armed at the time of the commission of the substantive crime. The intervener was then returned to Attica State Prison under an order of recommitment for service of the sentence imposed on December 15, 1941. Thereafter the Commissioner of Correction commenced this proceeding under article 78 of the Civil Practice Act for an order directing the County Judge to vacate the order of commitment dated December 15, 1941, and further directing him to reinstate the order of commitment dated April 2, 1937.

Feeling constrained to follow the decision in People ex rel. Hager v. Hunt, 261 App.Div. 1046, 26 N.Y.S.2d 573, the Justice at Special Term held that the sentence of April 2, 1937, was ‘wholly illegal’, and that accordingly on December 15, 1941, the intervener was for the first time legally sentenced. Denial of petitioner's motion followed, with unanimous affirmance in the Appellate Division.

Petitioner's contention is that the order of commitment dated December 15, 1941, vacating the former commitment of April 3, 1937, and changing the term of the original sentence for the substantive offense from an indeterminate term of from three to ten years to an indeterminate term of from one year to one year and three months, was unlawful. The original sentence for the substantive crime of not less than three years and not more than ten years it was argued was perfectly valid.

If at the time of the original sentence there was no hearing to determine whether the defendant was armed, the proper practice was to bring the intervener before the sentencing court so that that question could be determined upon a proper hearing. People ex rel. Romano v. Brophy, 280 N.Y. 181, 20 N.E.2d 385;People v. Krennen, 264 N.Y. 108, 190 N.E. 167;People v. Caruso, 249 N.Y. 302, 164 N.E. 106.

We assume for the purpose of this decision that there was no hearing and proceed to a consideration of whether this procedural defect invalidated that part of the sentence which was in no way dependent upon whether the defendant was armed or not.

The validity of the additional or increased sentence authorized by section 1944 depends entirely upon the presence of particular...