People ex rel. Zangrillo v. Doherty

• Decision Date: 01 October 1963
• Citation: 40 Misc.2d 505,243 N.Y.S.2d 694
• Parties: The PEOPLE of the State of New York ex rel. Joseph ZANGRILLO v. William DOHERTY, Warden, Respondent.
• Court: New York Supreme Court

Page 694

243 N.Y.S.2d 694

40 Misc.2d 505

The PEOPLE of the State of New York ex rel. Joseph ZANGRILLO v. William DOHERTY, Warden, Respondent.

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

Oct. 1, 1963.

Bob M. Finkin, Kew Gardens, for petitioner for the motion.

William Cahn, Dist. Atty., Nassau County; James J. Byrne, Asst. Dist. Atty., of counsel, opposed.

J. IRWIN SHAPIRO, Justice.

Upon this application for a writ of habeas corpus relator alleges that 'although as a matter of law and record relator is only a first * * * felony offender * * * he is detained under a third * * * felony offender sentence * * *', awarded October 15, 1954 whereunder the County Court of Nassau County committed him to Sing Sing Prision for an indeterminate term of not less than five nor more than ten years for the crime of Forgery, Second Degree, whereof he had theretofore been convicted upon his plea of guilty. It appears from the return that relator is in respondent's custody under the terms of an order made April 11, 1963 by the Supreme Court of Kings County, whereby the Warden of Clinton Prison--where relator was then confined--was directed to deliver him into respondent's custody so that the prisoner might attend and participate in a hearing appointed to be had on a coram nobis type proceeding pending in the court which made the order. Consequently, the cause for his imprisonment in Clinton Prison is the subject matter of the inquiry initiated by this writ. Consideration of that matter is deferred temporarily, however, because of a suggestion that relator was paroled under the 1954 sentence on or about May 24, 1962 to commence service of a later sentence pronounced May 18, 1962 by the County Court of Nassau County for the crime of Forgery, Second Degree, of which he had been convicted in May of 1961, by the verdict of a jury. The fact, if it be a fact, that the relator has been paroled under the sentence challenged by this writ raises the threshold question whether, in that event, he is 'restrained in his liberty' within the meaning of the law (CPLR §§ 7002, 10003). If so, the legality of his restraint may be tested by habeas corpus and determined by reference to the period for which relator could lawfully have been sentenced for the crime of which he was convicted (People ex rel. Kern v. Silberglitt, 4 N.Y.2d 59, 61 172 N.Y.S.2d 145, 146-147, 149 N.E.2d 76, 77-78), upon a correct adjudication of his prior-offender status (People ex rel. Newman v. Foster, 297 N.Y. 27, 74 N.E.2d 224; People ex rel. Carollo v. Brophy, 294 N.Y. 540, 63 N.E.2d 95; People ex rel. La Placa v. Murphy, 277 N.Y. 581, 13 N.E.2d 779) or the existence of other good cause for any increased punishment imposed (People ex rel. Milton v. Jackson, 297 N.Y. 708, 77 N.E.2d 15). The Court has not been cited to, nor has it found, any New York case directly addressing the primary issue involved.

The reasoning of some of the divided authorities that have considered the question brushes aside artificial technicalities, faces realities, evaluates the compulsions and restraints exercised by the parole and reaches a determination on the merits of the individual case. A determination here however requires established or agreed facts and unless counsel stipulate the facts and agree to a determination thereon, the Court, must proceed with the hearing which it previously directed. In either case, an expression of the Court's views of the applicable law will afford counsel some guidance in preparation for the final action to be taken herein.

Most of the facts are undisputed. Concededly, the 1954 sentence in Nassau County followed defendant's apparently regular arraignment on an information alleging that he had previously been convicted, in Kings County, of two felonies set forth therein, his acknowledgment that he was the person named therein, his waiver of delay in sentence and his negative response when asked whether he had legal cause to show why sentence should not be imposed and after he was directed to give his attention to the Court, whereupon the presiding Judge's utterances went as follows:

'THE COURT. Zangrillo, the Court has carefully considered your case, has talked with your attorney, and the Court has gone over the probation report. You stand convicted before this Court of the crime of forgery in the second degree. Unfortunately there is very little to be said for you. You record is not good.

'The sentence of the Court is that you be confined in Sing Sing State Prison for an indeterminate term, the minimum of which shall be not less than five years and the maximum not more than ten years.'

There is no doubt that the judgment of the Court was executed and the defendant committed thereunder, but no copy of the commitment has been presented to the Court on this application although it might have some meaningful bearing upon the practical interpretation attached to the sentence at the time when it was pronounced.

It is further conceded that, as the outcome of coram nobis type proceedings, thereafter brought by the relator, the Supreme Court, Kings County on October 19, 1962 and June 28, 1963 respectively, vacated and set aside the pleas of guilty upon which Zangrillo had been convicted and the sentences imposed thereon; that he was rearraigned and, in each case, pleaded guilty of the same lesser felony as originally and that in the one case ( 571/1945) sentence was suspended during his good behavior whereas, in the other (2 075/1946), he received an indeterminate sentence to Sing Sing Prison but execution thereof was suspended. These dispositions also destroyed the basis upon which the relator had been adjudicated a fourth offender, and sentenced accordingly, upon the previously noted second conviction of forgery, second degree, in the County Court of Nassau County.

As a result, his motion for resentence in Nassau County as a third offender was granted on the District Attorney's consent and, accordingly, the fourth offender sentence was set aside on February 1, 1963 and the Court thereupon sentenced him 'as a prior felony offender' to Sing Sing Prison for a term of not less than ten nor more than twenty years. There is no suggestion that the parole granted under the 1954 sentence was in any wise affected by the resentence just referred to.

This application is resisted by the District Attorney of Nassau County on the grounds (1) that relator should be relegated to a coram nobis type remedy in the County Court of Nassau County for resentence on his 1954 conviction and this Court should not, therefore, in this proceeding, remand him to the custody of the Nassau County authorities for such purpose (relator's motion for resentence has been pending in that court since July 23, 1963) and (2) that the record of the proceedings on the 1954 sentence shows that he was not sentenced as a third offender, the term actually meted out being proper for a first offender (Penal Law, Secs. 888, 2189). The latter phase of the argument is based on an apparently unfounded assumption that the County Court either made no adjudication in the proceedings had on the information in October of 1954 or that it overlooked the statutory mandate that defendant be sentenced according to his prior offender status, as then adjudicated (Penal Law, Sec. 1941, People v. Shaw, 1 N.Y.2d 30, 35, 150 N.Y.S.2d 161, 165, 133 N.E.2d 681, 683-684. Wthout evidence of any such irregularity, however, the presumption to the contrary thwarts either assumption and makes manifest the desirability of having an extract of the minutes in this record.

The questions of law may now be considered within the framework of the known facts and the possible factual issues.

On the foundational issue--whether a parolee may test the legality of his restraint thereunder by a writ of habeas corpus--the OklahomaCourt has laid it down that: 'The object of the writ * * * is to relieve the petitioner from illegal restraint of unlawful imprisonment, and if this release is accomplished, and the petitioner is not held in actual custody at the time of the hearing, there is nothing for the court to adjudicate' (Ex parte Davis, 11 Okl.Cr. 403, 404, 146 P. 1085). Accordingly, the questions intended to be raised will become moot and the petition will be dismissed if it appear that the prisoner has accepted a release on parole after applying for the writ (Ex parte Kirk, 16 Okl.Cr. 722, 185 P. 706). The Oregon Court holds that habeas corpus does not lie 'in cases of constructive custody. * * * When a convict is free to present himself * * *, and, in effect, say 'habeo corpus', there seems little common sense in directing a writ habeas corpus to some parole officer whose only authority to take physical custody of the parolee is dependent upon breach * * * of the conditions of parole' (White v. Gladden, 209 Or. 53, 64, 303 P.2d 226, 231). The Texas Court has likewise sustained a dismissal of the writ over the petitioner's contention that he was under restraint by the terms of his parole (Ex parte Dumas, 137 Tex.Cr. 524, 132 S.W. 2d 883, 884; See also to the same effect the Minnesota case of State ex rel. Ferrario v. Rigg, 259 Minn. 565, 108 N.W.2d 309.) Although it has been said--justly at the time--that the courts have paid very little attention to the particular conditions imposed upon the parolee (148 A.L.R. 1243, 1248) that is no longer the case.

California now holds the view that '* * * a prisoner upon parole * * * is constructively a prisoner under sentence in the legal custody and under the control of the Department of Correction. Accordingly, he is not free from legal restraint by the penal authorities and habeas corpus is the appropriate means for testing the legality of that restraint' (In re Marzec, 25 Cal.2d 794, 797, 154 P.2d 873, 874). The principle thus enunciated has been invoked to support a parolee's recourse to the writ as a means of challenging the felony-status of three crimes of which he had...