People ex rel. Smith v. LaVallee
| Decision Date | 15 February 1968 |
| Parties | PEOPLE of the State of New York ex rel. Robert Thomas SMITH, Appellant, v. J. Edwin LaVALLEE, Warden, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Charles W. Avery, Auburn, for appellant.
Louis J. Lefkowitz, Atty. Gen., for respondent; Ruth Kessler Toch, Sol. Gen., Albany, William S. Elder, Jr., Robert A. Contiguglia, Auburn, of counsel.
Before WILLIAMS, P.J., and BASTOW, GOLDMAN, DEL VECCHIO and MARSH, JJ.
The relator was convicted of Assault Second Degree with intent to commit the felony Sodomy, and sentenced to one day to life on February 13, 1952. Subsequently this Court (People v. Smith, 22 A.D.2d 333, 256 N.Y.S.2d 292), reversed an order of Erie County Court denying defendant's application for a writ of error coram nobis, vacated the sentence imposed February 13, 1952 and ordered defendant remanded for resentencing. On June 8, 1965 defendant was resentenced in Erie County Court to one day to life.
The judgment of resentence was affirmed without opinion by this Court (People v. Smith, 25 A.D.2d 618, 268 N.Y.S.2d 1019) and permission to appeal to the Court of Appeals was denied by Desmond, Ch. J., in May, 1966.
In his petition relator asserts that the resentence of June 8, 1965 should be vacated for failure of compliance with Penal Law § 2189--a, that he has not been given, while serving his sentence, any therapeutic care or treatment or rehabilitation procedure of a psychiatric nature, and that the imposition of the one day to life sentence based on hearsay reports without giving him an opportunity to be heard or to confront witnesses, violated constitutional requirements of due process.
We do not agree with the Special Term Justice that relator's application should be denied for non-compliance with CPLR 7002(c) 1 and 6, or for the reason that this is a successive petition for a writ within the meaning of CPLR 7003(b). While it is true that a prior writ was dismissed after a hearing on February 8, 1966, the issue presented on such application was not similar to the issues presented here.
However, the appeal taken by the relator to this Court from the judgment of resentence, resulting in affirmance with leave to appeal to the Court of Appeals denied, provided a full opportunity for review of the issue of compliance with § 2189--a at resentencing. (See People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 273 N.Y.S.2d 897, 220 N.E.2d 653). No reason appears for affording an additional review of the resentencing procedures except as the issue of violation of constitutional requirements of due process is raised. Such issue is related to the failure of the sentencing court acting under the statutes of this State to afford the defendant an opportunity to be heard and confront witnesses before imposing the one day to life sentence and to the receipt by the Court of hearsay evidence as a basis for such sentence.
The United States Supreme Court recently in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326, expressed agreement with the holding of the Court of Appeals of the Third Circuit in United States ex rel. Gerchman v. Maroney, 355 F.2d 302, relied on by the relator in his assertion of the unconstitutionality of the statutory provisions relating to one day to life sentences in New York.
From a review of the opinion it would appear clear that the Court related its holding that the provisions of the Colorado statute were unconstitutional to the requirements of the Colorado statute that a finding of fact be made by a sentencing court in a separate proceeding as to whether a person convicted of certain enumerated crimes constituted a threat of bodily harm to the public or is a habitual offender and mentally ill before a one day to life sentence could be imposed. No provision for a hearing preliminary to such a finding was made in the statute.
No requirement of such a finding in a separate proceeding is contained in the New York statutes as a condition for imposition...
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