People ex rel. Harty v. Fay

• Decision Date: 07 December 1961
• Citation: 223 N.Y.S.2d 468,10 N.Y.2d 374,179 N.E.2d 483
• Parties: , 179 N.E.2d 483 The PEOPLE of the State of New York ex rel. Michael J. HARTY, Appellant, v. Edward M. FAY, as Warden of Green Haven Prison, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 468

223 N.Y.S.2d 468

10 N.Y.2d 374, 179 N.E.2d 483

The PEOPLE of the State of New York ex rel. Michael J HARTY, Appellant, v. Edward M. FAY, as Warden of Green Haven Prison, Respondent.

Court of Appeals of New York.

Dec. 7, 1961.

Anthony F. Lo Frisco, New York City, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Winifred C. Stanley and Paxton Blair, Albany, of counsel), for respondent.

DESMOND, Chief Judge.

The question, undecided in this State (see Matter of Richetti v. New York State Board of Parole, 300 N.Y. 357, 360, 90 N.E.2d 893, 894) but answered affirmatively in many decisions elsewhere, is this: Does an inordinately long and unexplained delay in imposing a criminal sentence cause the trial court to lose jurisdiction so that a sentence thereafter imposed is void and the defendant is entitled to habeas corpus relief? Although there are no controlling New York statutes (see Code Crim.Proc. §§ 471, 472, 482), it is settled law in this State that the imposition of sentence may not be 'indefinitely deferred or postponed' (Matter of Hogan v. Bohan, 305 N.Y. 110, 112, 111 N.E.2d 233, 234; People ex rel. Prosser v. Martin, 306 N.Y. 710, 117 N.E.2d 902; People v. Cioffi, 1 N.Y.2d 70, 72, 150 N.Y.S.2d 192, 193, 133 N.E.2d 703, 704). There is at least an intimation in People v. Everhardt (104 N.Y. 591, 598, 11 N.E. 62, 66) that delay in sentencing sometimes results in loss of jurisdiction. Many courts in other States have concluded that an indefinite or protracted failure to pronounce sentence results in a loss of jurisdiction (People ex rel. Powers v. Shattuck, 274 Ill. 491, 113 N.E. 921; People ex rel. Boenert v. Barrett, 202 Ill. 287, 67 N.E. 23, 63 L.R.A. 82; People v. Cahill, 300 Ill. 279, 133 N.E. 228; Stevens v. State, 227 Ind. 417, 86 N.E.2d 84; Commonwealth v. Maloney, 145 Mass. 205, 13 N.E. 482; Grundel v. People, 33 Colo. 191, 79 P. 1022; State v. Scarbrough, 167 La. 484, 119 So. 523; Payne v. State, 154 Tenn. 47, 289 S.W. 526; Matter of Grove, 43 Idaho 775, 254 P. 519; Norman v. State, 73 Okl.Cr. 295, 120 P.2d 369). The general rule of those cases is expressed thus in People v. Penn, 302 Ill. 488, 494, 135 N.E. 92, 95: 'The effective administration of criminal law requires that one who pleads guilty or is convicted of a violation of the law shall be promptly and certainly punished, and no court has authority to suspend sentence indefinitely in such case. It is the duty of the court to pronounce judgment promptly at the term at which the conviction is had, unless upon a motion for a new trial, in arrest of judgment or for other cause, the case is continued for further adjudication, and the defendant, by recognizance or being held in custody is still required to answer the charge. If sentence is indefinitely suspended, the court loses jurisdiction, and a judgment subsequently entered is void.

An important holding to the contrary is the United States Supreme Court's in Miller v. Aderhold, 288 U.S. 206, 210, 53 S.Ct. 325, 77 L.Ed. 702 where it is said that, while indefinite or overlengthy postponement is unlawful, it gives the defendant no rights at least unless he has moved for timely sentencing, since his failure so to move is a consent or waiver. But the Miller holding is not binding on us and seems at war with concepts prevalent in this State especially since our State nowhere imposes on a defendant any duty to demand sentence and the question of retention or loss of jurisdiction should not depend on activity or nonactivity of defendant. Furthermore, a waiver is an intentional relinquishment of a known right and there is no proof here of any such intention of this relator. Actually, as will appear, the matter of the outstanding charge had been called to the attention of the prosecutor who took no action.

Relator, by the sentence which he is here attacking as void, was sentenced in November, 1959 to imprisonment for a term of 1 1/2 to 3 years on his plea of guilty, entered on February 10, 1953, to the crime of robbery, second degree. Interim events, some of which have a bearing on our problem, will now be described. The crime for which relator was sentenced in 1959 was committed on January 1, 1953 when he was 17 years old, and the indictment was for robbery, first degree. After a plea of guilty the court set April 9, 1953 for sentencing. Meanwhile, in March of that year, relator had been tried on another robbery indictment but a mistrial had been declared in that other case, after which the Bronx County Court, where these two robbery charges were pending, ordered relator transferred to Westchester County. In the latter county he pleaded guilty to still another robbery charge and was sentenced therefor in early 1953 to the Elmira Reception Center for an indefinite term not to exceed 5 years. Later in 1953 he was transferred to the New York State Vocational Institute in West Coxsackie, N. Y. On arrival at West Coxsackie the Superintendent of the institution wrote to the Clerk of the Bronx County Court as to the disposition of certain warrants which had been lodged as detainers against relator, one of these being based on the 1953 indictment with which we are concerned. Apparently, there was no reply to this request or action on it and later, and before relator was...