People ex rel. Lonschein in Behalf of Mencher v. Warden, Queens House of Detention for Men

• Decision Date: 25 May 1964
• Citation: 43 Misc.2d 109,250 N.Y.S.2d 15
• Parties: The PEOPLE of the State of New York on the relation of Arthur W. LONSCHEIN in behalf of Harry MENCHER, Petitioner, v. The WARDEN, QUEENS HOUSE OF DETENTION FOR MEN, Respondent.
• Court: New York Supreme Court

Page 15

250 N.Y.S.2d 15

43 Misc.2d 109

The PEOPLE of the State of New York on the relation of

Arthur W. LONSCHEIN in behalf of Harry MENCHER, Petitioner, v. The WARDEN, QUEENS HOUSE OF DETENTION FOR MEN, Respondent.

Supreme Court, Criminal Term, Queens County, Part I.

May 25, 1964.

Arthur W. Lonschein, Kew Gardens, for defendant.

Frank D. O'Connor, Dist. Atty., Queens County (Harvey B. Ehrlich, Asst. Dist. Atty., of counsel), for respondent.

J. IRWIN SHAPIRO, Justice.

This is an application by the petitioner, an attorney, for a writ of habeas corpus on behalf of his client, one Harry Mencher.

James Beatty, a payroll guard, was shot to death in the course of a robbery committed in Queens County on May 10, 1961. The relator's client, Harry Mencher, one Peter Donovan, and others, were indicted for murder in its first degree in causing Beatty's death. Mencher and Donovan were both convicted as charged, and the jury not having recommended life imprisonment, the court, in accordance with then controlling law, directed judgment on June 7, 1962 that the convicts be executed (Penal Law, §§ 1044, subd. 2, 1045 and 1045-a).

Upon appeal, the judgment was reversed and a new trial was ordered (People v. Donovan and Mencher, 13 N.Y.2d 148, 154, 163, 243 N.Y.S.2d 841, 845, 853, 193 N.E.2d 628, 631, 636). The indictment under which Donovan and Mencher were convicted has been superseded by the present indictment which likewise charges the two of them, along with one other, with having committed the crime of murder in its first degree.

The appeal was argued in the Court of Appeals on May 9, 1963. Six days earlier the Governor had approved an act amending the Penal Law and the Code of Criminal Procedure, in relation to punishment for murder in its first degree and kidnapping (Ch. 994, L.1963). So far as here pertinent, the statutory plan of punishment was changed so that the death penalty was no longer mandated, either upon a common law conviction of deliberate and premeditated murder, or upon a jury's failure to recommend life imprisonment, upon a defendant's conviction of felony murder. Under the law, as amended, the basic punishment for '(M)urder in the first degree is * * * life imprisoment * * *' (Sec. 1045, subd. 1, Penal Law).

Under subd. 3 of that section it is provided that:

'When a defendant has been found guilty after trial of murder in the first degree, the court shall discharge the jury and shall sentence defendant to life imprisonment if it is satisfied that defendant was under eighteen years of age at the time of the commission of the crime, or that the sentence of death is not warranted because of substantial mitigating circumstances.'

If the defendant is not sentenced

'to life imprisonment as provided in subdivision two (dealing with a plea of guilty to murder in the first degree, and therefore not here applicable) or three of section ten hundred forty-five, it shall, as promptly as practicable, conduct a proceeding to determine whether defendant should be sentenced to life imprisonment or to death. Such proceeding shall be conducted before the court sitting with the jury that found defendant guilty unless the court for good cause discharges that jury and impanels a new jury for that purpose.' (Penal Law, Sec. 1045-a, subd. 2).

In the event the jury is impaneled for the purpose stated, and after receipt of instructions from the Court 'on any matters appropriate in the circumstances, including the law relating to the possible release on parole of a person sentenced to life imprisonment' (Id., Sec. 1045-a, subd. 4), it then proceeds to determine whether the defendant should be sentenced to life imprisonment or death (Id., Sec. 1045-a, subd. 5). In the course of the proceeding, evidence may be presented by either party on any matter relevant to sentence including, but not limited to, the nature and circumstances of the crime, defendant's background and history, and any aggravating or mitigating circumstances and any relevant evidence, not legally privileged, shall be received regardless of its admissibility under the exclusionary rules of evidence (Id., subd. 3).

The statutory scheme went into effect on July 1, 1963 and is applicable to all trials commenced on or after that day (Ch. 994, sec. 11, L.1963). It was October 8, 1963 that the Court of Appeals rendered the decision, already referred to, reversing the judgment of conviction in this case so that the new trial ordered by it must perforce be governed by the new statutory enactments.

The statutory change in the manner of affecting life imprisonment, or the death penalty, does not change the definition of first degree murder nor does it in any manner affect the established rules normally governing the admission and consideration of evidence for determining the defendant's guilt or innocence of that charge. The rule with respect to the kind of evidence which may be received deals solely with the second stage of the trial, i. e., that phase which is concerned with fixing the punishment.

Through his counsel, and by means of the present writ, defendant Mencher now challenges the legality of his detention to answer the charge of murder on the ground that, as to him, the changes in the law are ex post facto, and that they therefore cannot be applied to him. He urges that since the repeal of the former law carried with it no saving clause he may not now be prosecuted under either statute and must, therefore, be set free.

The District Attorney in addition to opposing the application on the merits also opposes it as premature. He contends that the defendant may be acquitted, or may be found guilty of a degree of homicide less than first degree, or that the Court, in the event of a conviction of murder in its first degree, may impose life imprisonment and that therefore the defendant's application should not be entertained at this time. I hold that the validity of the statute is determinable by reference to what may happen thereunder in any alternative and not merely by reference to what verdict actually results upon the trial of the indictment (Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182; Beavers v. Henkel, 194 U.S. 73, 83, 24 S.Ct. 605, 606, 48 L.Ed. 882). The objection that the application is premature is, therefore, rejected and the writ is considered on the merits.

The constitutional interdiction of ex post facto laws (U.S.Const., Art. I, secs. 9, 10) reaches out to (1) every law which makes criminal an act done before its enactment but which was then innocent; (2) every law that aggravates a crime or makes it greater than it was when committed; (3) every law that changes the punishment and inflicts a greater punishment than the law affixed to the crime, when committed; and (4) every law that alters the legal rules of evidence and receives less, or different evidence than the law required at the time of the commission of the offense, in order to convict the offender or (5) otherwise deprives the accused of any substantial right or immunity possessed by him at the time when he is said to have committed the offense charged (Mallett v. North Carolina, 181 U.S. 589, 597, 21 S.Ct. 730, 732, 45 L.Ed. 1015, 1019; Malloy v. South Carolina, 237 U.S. 180, 183-185, 35 S.Ct. 507, 508-509, 59 L.Ed. 905; Calder v. Bull, 3 Dall. 386, 3 U.S. 386, 1 L.Ed. 648; People ex rel. Pincus v. Adams, 274 N.Y. 447, 9 N.E.2d 46).

Defendant Mencher contends that his case is within categories 3 and 4 above mentioned, because (a) the new law 'changes the punishment and actually serves to inflict a greater punishment' and because (b) damaging evidence of his background and previous criminal career may be brought to the attention of the jury in the second stage of the trial, whereas such evidence was scrupulously excluded under the former procedure.

Taking up these propositions in their inverse order, I hold the contention made by the defendant that the new statute is ex post facto as to him because of the different kind of evidence permissible at the second stage portion of the trial to be without merit. The nature of the evidence admissible in the sentencing proceeding does not in any wise modify, change, lessen, or otherwise affect the rules of evidence on the trial to prove a defendant's guilt of murder, nor does it have any relevancy or pertinency whatever until after the return of a verdict of guilt and until the court, in the first instance, decides to submit the matter to a jury for its determination. Under the Penal Law and the Code of Criminal Procedure, as they existed prior to the enactment of Ch. 994 of the Laws of 1963, the jury in certain capital cases (felony murder) was empowered to recommend life imprisonment. Such a recommendation was not binding upon the court (People v. Ertel, 283 N.Y. 519, 523, 29 N.E.2d 70, 71), although it made possible the exercise of a discretionary imposition of a sentence to life imprisonment (138 A.L.R. 1241). In determining whether to exercise its discretion to impose a sentence of life imprisonment, in place of a death sentence, the court was required to obtain the defendant's criminal record, including any reports that might have been made as a result of a mental, psychiatric or physical examination of the defendant, and in addition, the court had the power ex parte, to seek any information that would aid it in determining the proper sentence to be imposed (Sec. 482, Code Crim.Proc.). The nature of the information so secured and so considered could constitutionally be any relevant evidence regardless of its admissibility under the exclusionary rules of evidence (Williams v. People of the State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337). Thus, there is no basic change in the type of evidence or information which could be considered by the sentencing power under the old law, the justice presiding at the trial, or which may be followed in giving the facts to the sentencing power, the...