People ex rel. Sloane v. Lawes

• Decision Date: 04 December 1930
• Citation: 255 N.Y. 112,174 N.E. 80
• Parties: PEOPLE ex rel. SLOANE v. LAWES, Warden. Application of SLOANE (two cases).
• Court: New York Court of Appeals Court of Appeals

255 N.Y. 112

174 N.E. 80

PEOPLE ex rel. SLOANE

v.LAWES, Warden. Application of SLOANE (two cases).

Court of Appeals of New York.

Dec. 4, 1930.

Roy H. Sloane was convicted of feloniously possessing metal knuckles, and he appeals from three orders of the Appellate Division (230 App. Div. 714, 242 N. Y. S. 882; 230 App. Div. 710, 242 N. Y. S. 883) denying him relief from a judgment of conviction, and sentence to state's prison for the term of seven years.

Order dismissing writ of habeas corpus (230 App. Div. 714, 242 N. Y. S. 882) affirmed. Order refusing peremptory writ of mandamus (230 App. Div. 710, 242 N. Y. S. 883) reversed and rendered. Appeal from order denying application to vacate judgment (230 App. Div. 710, 242 N. Y. S. 883) dismissed.

Appeal from Supreme Court, Appellate Division, Second department.

H. Thornton Banks and Samuel L. Miller, both of New York City, for appellant.

Frank H. Coyne, Dist. Atty., of Yonkers (James E. Dempsey, of Peekskill, of counsel), for the People and Frederick P. Close.

Hamilton Ward, Atty. Gen. (Almon W. Burrell, of Albany, of counsel), for respondent.

CRANE, J.

On the 14th day of December, 1927, Roy H. Sloane, the defendant, was convicted of the crime of feloniously possessing metal knuckles, and sentenced to Sing Sing State Prison at hard labor for the term of seven years. By section 1897 of the Penal Law (Consol. Laws, c. 40) a person who carries or possesses metal knuckles is guilty of a misdemeanor, ‘and if he has been previously convicted of any crime he is guilty of a felony.’ The people having charged the defendant with possessing metal knuckles as a felony, it was necessary to allege and set forth in the indictment the crime for which the defendant had been previously convicted and by reason of which the nature of the offense was raised from misdemeanor to felony. This the people did by setting forth in the indictmentthe fact that at the County Court of Westchester on the 14th day of March, 1927, the said Roy H. Sloane was convicted of grand larceny in the first degree, and thereupon sentenced to Sing Sing for the term of ten years. On the 31st day of December, 1929, the County Court in which the defendant had been convicted of larceny set aside that conviction and ordered a new trial on the ground of newly discovered evidence. The new trial, on the 29th day of April, 1929, resulted in a verdict of ‘not guilty.’ The defendant, however, was taken back to Sing Sing, where he is still imprisoned, serving his sentence of seven years for feloniously possessing metal knuckles. The crime was made a felony because of the previous conviction of larceny, of which the defendant now stands acquitted.

Section 464 of the Code of Criminal Procedure enacts that the granting of a new trial places the parties in the same position as if no trial had been had. When the County Court set aside the conviction for larceny and granted the defendant a new trial, the conviction was at an end for all purposes. The defendant was properly convicted of possessing metal knuckles, but the question at the outset was whether the crime was a misdemeanor or a felony. For the misdemeanor the prisoner could have been sentenced to the county jail, penitentiary, or state prison for not longer than one year. Penal Law, §§ 1937, 2182. He has been sentenced for seven years upon the assumption that he had previously been convicted of the crime of grand larceny. In the eyes of the law this was not the fact. It is true that at the time of sentence there was a record of such a conviction, but it has been wiped out, and the law has declared that such conviction did not exist. Code Cr. Proc. § 464; People v. Palmer, 109 N. Y. 413, 17 N. E. 213,4 Am. St. Rep. 477. A reversal on appeal or the granting of a new trial or an acquittal thereafter is the same as if no conviction had ever existed. The law deals with realities and not fictions; it punishes men for what they have done, not for formal entries or paper records not true in fact. It is abhorrent to our sense of justice to think of this defendant being confined for seven years because of a previous crime of which he was not guilty according to the verdict of a jury and a judgment of the court. He has been sentenced as a second offender when he was only a first offender. Sections 1941, 1942, and 1943 of the Penal Law provide that where a person has been convicted of a felony, his sentence must be increased, if he has been theretofore convicted. These sections, however, only apply to felonies, not misdemeanors. Sloane's conviction here for a felony depended not upon these sections, but upon the peculiar wording to section 1897 which, as heretofore stated, makes the crime of carrying metal knuckles a misdemeanor, unless the defendant has previously been convicted of crime.

The fact is, therefore, that the defendant has served in prison all the time which the law gives him for the crime he actually committed; he was convicted of carrying metal knuckles as a misdemeanor, there being no previous conviction. This is the way the matter stands at law. It is no answer to say that at the time the county judge sentenced him there was a previous conviction of record; that has been wiped out, and all the statute law provides for his punishment is at most one year in prison or a fine of $500, or both.

The official public records of the County Court of Westchester county show these facts-the judgment of that court resting upon the previous conviction is contrary to its own records, showing an acquittal. On such incontrovertible record evidence the courts should act.

The defendant being in Sing...