People ex rel. Gallo v. Warden of Greenhaven State Prison

• Decision Date: 21 July 1969
• Parties: The PEOPLE, etc., ex rel. Joseph GALLO, Appellant, v. The WARDEN OF the GREENHAVEN STATE PRISON, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 752

303 N.Y.S.2d 752

32 A.D.2d 1051

The PEOPLE, etc., ex rel. Joseph GALLO, Appellant, v. The WARDEN OF the GREENHAVEN STATE PRISON, Respondent.

Supreme Court, Appellate Division, Second Department.

July 21, 1969.

Price & Iovine, David F. Price, Brooklyn, for petitioner-appellant.

Frank S. Hogan, Dist. Atty., New York County, New York City, for respondent; Michael R. Juviler, William C. Donnino, Asst. Dist. Attys., of counsel.

Before BELDOCK, P.J., and CHRIST, BRENNAN, HOPKINS and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Dutchess County, entered April 9, 1969, which dismissed the writ. Judgment affirmed, without costs.

Relator was convicted of conspiracy to commit extortion and of attempted extortion after a jury trial in New York County and was sentenced thereon, on December 21, 1961, to consecutive terms. The judgment was unanimously affirmed and the imposition of consecutive sentences was expressly held proper upon appeal to the Appellate Division, First Department (see People v. Gallo, 19 A.D.2d 620, 241 N.Y.S.2d 383). Chief Judge Desmond thereafter denied leave to appeal to the Court of Appeals and on March 23, 1964 the Supreme Court of the United States denied certiorari (Gallo v. New York, 376 U.S. 953, 84 S.Ct. 971, 11 L.Ed.2d 972).

On the present appeal, relator contends that the subsequent decisions of the Court of Appeals in People v. Birmingham, 16 N.Y.2d 984, 265 N.Y.S.2d 295, 212 N.E.2d 780, and People v. Mancuso, 22 N.Y.2d 679, 291 N.Y.S.2d 370, 238 N.E.2d 757, render the imposition of the consecutive sentences upon him illegal and void. We are of the opinion that this question is properly before us on this appeal. In People ex rel. Pannone v. Fay, 16 A.D.2d 946, 229 N.Y.S.2d 717, mot. for lv. to app. den. 12 N.Y.2d 642, 232 N.Y.S.2d 1026, 185 N.E.2d 551, this court held that habeas corpus was not available to present the relator with an opportunity to advance again the very same arguments previously presented upon appeal and disposed of on the merits. However, the arguments presented here are based upon decisions of our highest court rendered subsequent to the date of relator's appeal to the First Department and obviously could not have been presented upon that appeal. Nevertheless, no argument which was, or could have been, presented to the First Department is available on this appeal and no question relating to the propriety of the imposition of consecutive sentences at that time is, or could be, reviewed by us (People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 273 N.Y.S.2d 897, 220 N.E.2d 653; People ex rel. Rohrlich v. Follette, 20 N.Y.2d 297, 282 N.Y.S.2d 729, 229 N.E.2d 419; People ex rel. Gonzalez v. Deegan, 29 A.D.2d 865, 288 N.Y.S.2d 362).

In unanimously affirming the imposition of consecutive sentences upon relator herein, the Appellate Division, First Department, relied upon People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 264, 159 N.Y.S.2d 203, 206, 140 N.E.2d 282, 284--285, wherein it was stated:

'It is clear that if separate and distinct acts were committed, and that they violated more than one section of the Penal Law, punishment for each of them would be proper although they arose out of a single transaction * * *. It is also not open to dispute that if there were merely a Single inseparable act violative of more than one statute, or if there were an act which itself violated one statute and was a material element of the violation of another, there would have to be single Punishment' (emphasis in original).'

The First Department therefore found that relator's conduct constituted separate and distinct acts. Such determination was essential to their conclusion that the imposition of consecutive sentences upon Gallo was proper and is not open to question here. Relator can only succeed upon this appeal if he can demonstrate that the decisions upon which he relies render consecutive sentences for conspiracy and for attempt to commit the underlying crime illegal and void in every case, without regard to whether or not the conduct constituting the crimes was 'separate and distinct' under prior decisional law, and further that such change in the law is retroactive and available to him on this appeal. In our view relator has failed to establish either of these propositions.

The entire thrust of his argument is that the crimes of conspiracy and an attempt to commit the underlying crime are both 'inchoate and anticipatory' offenses and as such are not subject to multiple punishment. We discern no such rule. The cases relied upon by relator do not establish it.

In People v. Birmingham, 16 N.Y.2d 984, 265 N.Y.S.2d 295, ...