People ex rel. Maurer v. Jackson

• Citation: 159 N.Y.S.2d 203,2 N.Y.2d 259
• Parties: , 140 N.E.2d 282 The PEOPLE of the State New York ex rel. Adolph MAURER, Respondent, v. J. Vernel JACKSON, as Warden of Clinton Prison, Appellant. The People of the State of New York, Appellant.
• Decision Date: 10 January 1957
• Court: New York Court of Appeals

Page 203

159 N.Y.S.2d 203

2 N.Y.2d 259, 140 N.E.2d 282

The PEOPLE of the State New York ex rel. Adolph MAURER, Respondent, v. J. Vernel JACKSON, as Warden of Clinton Prison, Appellant.

The People of the State of New York, Appellant.

Court of Appeals of New York.

Jan. 10, 1957.

Jacob K. Javits, Atty. Gen. (J. Bruce MacDonald, Schenectady, James O. Moore, Jr., and Paul C. Reuss, Albany, of counsel), for appellants.

Frank A. Gulotta, Dist. Atty., Mineola (Henry P. DeVine, Mineola, of counsel), amicus curiae, in support of appellant's position.

Thomas M. Gardiner, Rouses Point, for respondent.

FROESSEL, Judge.

Relator was indicted on July 31, 1951, by the Grand Jury of Nassau County on three counts of robbery in the first degree, one count of attempted robbery in the first degree, five counts of grand larceny in the first degree, one count of assault in the first degree, one count of unlawfully carrying a loaded pistol concealed upon the person, three counts of assault in the second degree, and petit larceny.

He pleaded guilty to attempted robbery in the first degree (13th count), assault in the first degree (14th count), and unlawfully carrying a loaded pistol concealed upon the person (16th count). On the date of sentencing, the District Attorney of Nassau County filed an information charging that relator had previously been convicted of the felony of attempted rape in the second degree, which relator admitted to be true. Sentence was thereupon pronounced upon him for the three crimes to which he had pleaded guilty, as follows: (1) for attempted robbery in the first degree, a term of 15 to 30 years; (2) for assault in the first degree, a term of 10 to 20 years; (3) for unlawfully carrying a loaded pistol concealed upon the person, a term of 7 to 14 years; and, in addition thereto, (4) for being armed with a loaded pistol on the commission of the foregoing, a term of 10 to 15 years, under section 1944 of the Penal Law, Consol.Laws, c. 40. The first three of these sentences were ordered to run concurrently, and the last consecutively.

In his petition before the Supreme Court of Clinton County, relator contended that the last three sentences violated section 1938 of the Penal Law in that they constituted multiple punishment. The Supreme Court, without opinion, dismissed relator's petition. The Appellate Division agreed with the Supreme Court on the appropriateness of all the sentences except that for assault, and accordingly reversed, remanding relator to the County Court of Nassau County for resentencing. Relator did not appeal from the determination of the Appellate Division. Thus his present contentions with respect to the invalidity of his sentences for unlawfully carrying a concealed weapon on his person and for being armed during the commission of the crimes are not properly before us. Litchfield Const. Co. v. City of New York, 244 N.Y. 251, 258, 155 N.E. 116, 117; 9 Carmody-Wait on New York Practice, § 210, at p. 416.

The single issue now presented is whether the imposition of concurrent sentences for assault in the first degree and attempted robbery in the first degree in this case violated the prohibition of double punishment contained in section 1938 of the Penal Law, which reads as follows: 'An act or omission which is made criminal and punishable in different ways, by different provisions of law, may be punished under any one of those provisions, but not under more than one; and a conviction or acquittal under one bars a prosecution for the same act or omission under any other provision.' Appellants, the People of the State of New York, and J. Vernel Jackson, as Warden of Clinton Prison, Dannemora, New York, argue that the determination of the Appellate Division was erroneous, inasmuch as the sentencing court ordered that relator's sentences for attempted robbery and assault be served concurrently, and concurrent sentences do not constitute double punishment under section 1938. The amicus, the District Attorney of Nassau County, argues additionally that assault first degree, with intent to kill, Penal Law, § 240, is not the same act as attempted robbery first degree, Penal Law, § 2124, and that defendant's act will be found in the indictment whereas the statute upon which the indictment is drawn will define and measure the crime citing People v. Olah, 1949, 300 N.Y. 96, 89 N.E.2d 329, 19 A.L.R.2d 219; People ex rel. Newman v. Foster, 1947, 297 N.Y. 27, 74 N.E.2d 224; People v. Love, 1953, 305 N.Y. 722, 112 N.E.2d 845; Moore v. Macduff, 1955, 309 N.Y. 35, 127 N.E.2d 741. See, also, People ex rel. Poster v. Jackson, 303 N.Y. 680, 102 N.E.2d 837. Thus it is urged that in pleading guilty to the attempted robbery relator admitted that he, accompanied by a confederate, in the nighttime of July 4, 1951, unlawfully and feloniously attempted to take certain property 'having an aggregate value of about seventy ($70.) dollars * * * from the person and in the presence of Joseph Richter, against his will, by means of force and violence and fear of immediate injury to his person, the said defendants each, at the time, being then and there aided by an accomplice actually present, being then and there armed with a dangerous weapon, to wit, a revolver, and an automatic pistol, both loaded, being then and there assisted by the use of an automobile.' (Count 13.) And in pleading guilty to assault in the first degree, relator admitted that on July 4, 1951, he and another 'with intent to kill, assaulted one Joseph Richter, by aiming and discharging a loaded pistol at said Joseph Richter' (indictment, count 14).

There is nothing in the record to indicate whether the attempted robbery and the assault were part of the same transaction. Since there was a plea of guilty, there is no trial evidence to which we may resort. The indictment itself is not a part of the printed case on appeal; however, a certified copy thereof was handed up to us on the argument. It shows that both crimes are alleged to have been committed on the same day and against the same victim. Assuming that the robbery and the assault occurred at about the same time, the amicus nevertheless maintains that the separate sentences were proper here, and we give that first consideration.

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. People v. Repola, 305 N.Y. 740, 113 N.E.2d 42; People ex rel. Poster v. Jackson, 303 N.Y. 680, 102 N.E.2d 837, supra; People v. Skarczewski, 287 N.Y. 826, 41 N.E.2d 99; People v. Zipkin, 202 Misc. 552, 118 N.Y.S.2d 697; cf. People v. Savarese, 1 Misc.2d 305, 313, 318, 114 N.Y.S.2d 816, 828. 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. People v. Repola, 305 N.Y. 740, 113 N.E.2d 42, supra; People v. Plesh, 283 App.Div. 868, 130 N.Y.S.2d 157; People v. Pauley, 281 App.Div. 223, 229-230, 119 N.Y.S.2d 152, 157-158; see, also, People v. Nelson, 309 N.Y. 231, 128 N.E.2d 391; People v. Stein, 280 App.Div. 176, 112 N.Y.S.2d 291, affirmed 304 N.Y. 834, 109 N.E.2d 710; Ex parte Chapman, 43 Cal.2d 385, 273 P.2d 817.

The lower court cases applying these criteria to the crimes of assault and robbery have held that the act which constitutes the element of force in the robbery may not be made the basis of consecutive punishment for assault. In Zovick v. Eaton, 259 App.Div. 585, 20 N.Y.S.2d 477, it was held that where defendant pointed a loaded revolver at certain persons and robbed them, there could not be consecutive sentences for both robbery and assault with a deadly weapon, see, also, People ex rel Thornwell v. Heacox, 231 App.Div. 617, 247 N.Y.S. 464. People ex rel. Richardson v. Morhous, 182 Misc. 299, 43 N.Y.S.2d 221, was a case in which, during the course of the robbery, defendant's gun went off (but without any intent to kill), injuring the victim. It was there held that consecutive sentences for both robbery and assault in the second degree were improper. In People v. Wells, 246 App.Div. 853, 284 N.Y.S. 953, one of the defendants in the course of an escape shoved a gun in the abdomen of the Sheriff and another took his key. Consecutive sentences for robbery and assault in the first degree were held improper.

Two recent cases in California, which has a statute almost identical with section 1938, are illustrative of their treatment of separate sentences for assault and robbery. In the case of Ex parte Chapman, 43 Cal.2d 385, 273 P.2d 817, supra, the victim was struck by defendant after he had surrendered his money to defendant, and separate sentences were sustained. In People v. Logan, 41 Cal.2d 279, 290, 260 P.2d 20, defendant struck his victim with a baseball bat and then took her purse. It was held that there could not be punishment for both assault and robbery.

In the case now before us the meager record will not permit us to determine precisely the acts of this defendant, e.g., whether or not the attempted robbery was imcomplete before he discharged his revolver in his attempt to kill Richter, or how much time if any elapsed between those separate acts. Only the indictment may guide us as to the acts constituting the crimes. From the plea of guilt thereto, we know that defendant admitted not only the act of attempting to rob Richter and the assault incidental thereto, i.e., with intent to commit that felony, but also a separate act of 'aiming and discharging a loaded pistol' at Richter 'with intent to kill' him.

Robbery is defined as an 'unlawful taking or compulsion, if accomplished by force or fear * * * when committed by a person: 1. Being armed with a dangerous weapon', Penal Law, § 2124. A material element of...