People ex rel. Kern v. Silberglitt

• Decision Date: 28 February 1958
• Citation: 149 N.E.2d 76,4 N.Y.2d 59,172 N.Y.S.2d 145
• Parties: , 149 N.E.2d 76 The PEOPLE of the State of New York ex rel. Michael KERN, on Behalf of Harry Gross, Appellant, v. Harry SILBERGLITT, as Warden of the Penitentiary of the City of New York, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 145

172 N.Y.S.2d 145

4 N.Y.2d 59, 149 N.E.2d 76

The PEOPLE of the State of New York ex rel. Michael KERN, on Behalf of Harry Gross, Appellant, v. Harry SILBERGLITT, as Warden of the Penitentiary of the City of New York, Respondent.

Court of Appeals of New York.

Feb. 28, 1958.

Michael Kern, New York City, for appellant.

Edward S. Silver, Dist. Atty., Brooklyn (William I. Siegel, Brooklyn, of counsel), for respondent.

DESMOND, Judge.

This is a habeas corpus proceeding contesting a sentence imposed on one Harry Gross. In February, 1956, when Gross was found guilty of a violation of probation, the County Judge had under the pertinent statutes a choice between two kinds of imprisonment. He could have ordered confinement in a penal institution for not more than one year (Penal Law, §§ 600, 1937) or in a reformatory-type institution for an indeterminate term not exceeding three years (Correction Law, § 203). He chose the latter. The reformatory-type sentence, however, was forbidden by law for any convicted person who was 'mentally or physically incapable of being substantially benefited' by reformatory treatment (Correction Law, § 203). As we held in People v. Thompson, 251 N.Y. 428, 432, 167 N.E. 575, 577, such a sentence 'is necessarily based upon a previous determination that the offender * * * is not incapable of such benefit'. In this instance, however, the sentencing Judge talked one way but acted another way. He announced at some length his conclusion that Gross was beyond redemption, but when it came to the actual mandate he (incongruously and inconsistently) ordered an indeterminate sentence.

Gross took an appeal from the conviction but up to the date of this present decision in this court that appeal has not been prosecuted. A year after sentence relator sued out this writ of habeas corpus. We agree with the Appellate Division that the remedy is not available. It is only when 'relator's sentence is for a term longer than authorized by statute' (People ex rel. Carollo v. Brophy, 294 N.Y. 540, 542, 63 N.E.2d 95, 96) that habeas corpus may be invoked to correct it (People ex rel. Tweed v. Liscomb, 60 N.Y. 559, 591, 592; People ex rel. Milton v. Jackson, 297 N.Y. 708, 77 N.E.2d 15). 'The writ of habeas corpus they cannot use, since their convictions were by a court which had jurisdiction of their persons and of the crimes they were charged with, and power to declare the particular sentences meted out to them' (Hogan v. New York Supreme Court, 295 N.Y. 92, 97, 65 N.E.2d 181, 183). The question is one of power, not of propriety of good judgment, and power existed here. In People v. Bendix, 260 N.Y. 590, 184 N.E. 105, this court upheld the indeterminate reformatory sentence, in a situation much like the one we are here describing. When Bendix was sentenced, the Presiding Justice read into the minutes defendant's record of 10 convictions including 4 felonies. His counsel argued to the sentencing court and later to this court on appeal that the indeterminate reformatory sentence was illegal and obviously punitive rather than correctional. We affirmed the judgment of conviction (for another case similar to Bendix see People v. La Rue, 266 App.Div. 995, 45 N.Y.S.2d 274).

It is no mere technicality to hold that this error, if such it was, may not be reached by habeas corpus. All this matter of sentencing appeared on the face of the record and the alleged invalidity of the sentence was argued to the County Judge by the attorney representing Gross. No reason appears why Gross should have this additional remedy besides appeal which he failed to use. Appeal was the method employed to raise this very question in People v. Thompson, 251 N.Y. 428, 167 N.E. 575, supra; People v. Bendix, 260 N.Y. 590, 184 N.E. 105, supra, and People v. Tower, 308 N.Y. 123, 123 N.E.2d 805.

Of course, we cannot close our eyes to these irregularities or fail to realize that this kind of sentence, authorized by the Legislature for one purpose, is being used for quite a different one. But since habeas corpus is the wrong remedy, we cannot reach in this case the question of the propriety of this sentence.

The order should be affirmed.

FROESSEL, Judge (dissenting).

On March 30, 1955 defendant, having some four years previously been indicted for multiple criminal contempts, appeared before a County Judge of Kings County, after serving the intervening time in prison on other charges, and pleaded guilty to one of the counts. The County Judge suspended sentence, and fixed a probationary period of one year, adding as a caution to defendant: 'If you violate the law, if you associate with gamblers, if you frequent race tracks, and you go back to the old life that you led * * * my arm will stretch out, and I will bring you back here and I will clap you into jail so fast that you would not know what happened to you'.

In December, 1955 defendant was again arraigned before the same County Judge on a charge that he had violated the terms of his probation by frequenting race tracks in New Orleans, Louisiana. A hearing was held on February 1, 1956 at which evidence was adduced tending to show that defendant had violated the terms of his probation, which he admitted. The Judge then proceeded to address himself to relator as follows:

'This man here runs true to a pattern, and you know it as well as I do. I said I had my fingers crossed then, and I was right. He runs true to a pattern. You can no more change him the longest day he lives that (sic) you will take the spots off a leopard. He will never be any different. He cannot be; it is part of the very being, it is part of the very blood that courses through his veins.

'I had hoped this man would turn over a new leaf. I sincerely wished him well. * * * But it is just a case of talent and ability in a wrong container. Capone had ability, too, organizing abilities. So does this man. But I do not think he will ever change. I do not think he ever will.

'Mr. Kern: Will your Honor please consider the maximum which the decisions and the statutes have in mind, decisions of one year?

'The Court: I do not think he ever will change.

'Mr. Kern: The Court said probation for one year.

'The Court: God knows, Judges and District Attorneys, Special Sessions Judges, the Corporation Counsel's Office, this Court; everybody has tried to be helpful to give him a change to go straight and to be decent. I do not think it is in him.

'Mr. Kern: Judge Leibowitz, even if it is not, one year punishment for what he did, frequenting the race tracks, is a lot of punishment.

'The Court: Mr. Kern, please. * * * You have to look at the whole picture of who this man is and what his prognosis is, just what is ahead of him; what he will ever be. He will never be anything but Harry gross. If I saw a glimmer of hope for him, I would exercise my prerogative as a Judge in that regard. He is absolutely and unqualifiedly contemptuous of all legal authority. There is nothing but contempt in him for everything that means law and order and he does not surrender until the rope is around his neck. It is not merely of a man falling from grace by going to a race track; it is more than that. I do not want the word to go out that he is being punished just because he went to a race track. It is the life this man is leading, who he is and what he is and what he means to society, the damages that he can do. If he only did damage to himself, nobody would care. But it is the harm that he wreaks. I do not think it is beyond him to start in a new organization which led to his original indictment. It is not beyond him.

'The sentence of the Court is that he be confined to the New York City Penitentiary. The defendant is remanded.

'Mr. Kern: Would your Honor make that one year?

'The Court: If the Parole Board asks me, I am going to recommend that he be kept there three years.' (All emphasis supplied.)

The indeterminate sentence confining defendant to the New York City Penitentiary was imposed pursuant to article 7-A of the Correction Law. That article was the successor to the Parole Commission Law (L.1915, ch. 579). The purpose of this article and its predecessor statutes was to provide in certain cases that 'where there is possibility of substantial benefit from an indeterminate sentence to an institution maintained for correctional and reformatory purposes, such a sentence should be imposed upon an offender' (People v. Thompson, 251 N.Y. 428, 431, 167 N.E. 575, 576; People ex rel. Gordon v. Ashworth, 290 N.Y. 285, 288-289, 49 N.E.2d 140, 141-142; People ex rel. Rabiner v. Warden of City Prison, 209 App.Div. 795, 797, 205 N.Y.S. 694, 685); its object is 'moral reformation' (People ex rel. Kipnis v. McCann, 199 App.Div. 30, 38, 191 N.Y.S. 574, 579, affirmed 234 N.Y. 502, 138 N.E. 422). This purpose is recognized in the statute itself, since subdivision e of section 203 of the Correction Law states that the article 'shall not apply to any person who is * * * (3) * * * mentally or physically incapable of being substantially benefited by being committed to a correctional and reformatory institution'. (Emphasis supplied.)

It does not appear from the record before us that defendant has appealed from his conviction in this case. A previous habeas corpus proceeding was dismissed as premature (5 Misc.2d 502, 159 N.Y.S.2d 628). (3 A.D.2d 996, 163 N.Y.S.2d 436.) In the present habeas corpus proceeding, Special Term dismissed the application and the Appellate Division affirmed, holding that the 'penitentiary sentence imposed raises an irrebuttable presumption that the court did not find the defendant incapable of being substantially benefited by a commitment to a correctional and reformatory institution', citing People v. Thompson, 251 N.Y. 428, 167 N.E. 575. The Appellate Division also added a ground of affirmance based upon the unavailability of the writ of habeas corpus, to which we shall advert later.

In People v. Thompson, 251 N.Y....