People v. Bell

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MARSH; All concur, except CARDAMONE
• Citation: People v. Bell, 328 N.Y.S.2d 153, 38 A.D.2d 778 (N.Y. App. Div. 1972)
• Decision Date: 13 January 1972
• Parties: PEOPLE of the State of New York, Respondent, v. Frederick BELL, Appellant.

Page 153

328 N.Y.S.2d 153

38 A.D.2d 778

PEOPLE of the State of New York, Respondent, v. Frederick BELL, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Jan. 13, 1972.

Ronald C. Valentine, Victor B. Chambers, Macedon, for appellant.

L. Paul Kehoe, Lyons, for respondent.

Before MARSH, J.P., and WITMER, GABRIELLI, CARDAMONE and HENRY, JJ.

MEMORANDUM:

The defendant, a 20-year-old Young Adult received an indeterminate reformatory term not to exceed four years pursuant to section 75.00 of the Penal Law, upon his plea of guilty to two class 'A' misdemeanors in satisfaction of an indictment charging him with burglary, third degree, and petit larceny. He challenges the right of the court to sentence him to a reformatory term absent a specific finding by the court that he is amenable to and a proper subject for such a term based upon evidentiary findings, following a post conviction hearing on this sole question. We find no such need therefor. The sentencing minutes reveal that the court was familiar with the defendant's record of 'at least eleven reported brushes with the law as well as charges of desertion from the Armed Forces' and in imposing the reformatory term the court also stated to the defendant that 'you may perhaps gain some benefit from the sentence which the Court is about to pronounce so that you can return to society in the future and become a useful citizen'. In addition to the court's specific reference to the need for the reformatory treatment envisioned by the drafters of section 75.00 of the Penal Law, we take note of the statement by then Chief Judge Desmond in writing for an unanimous court in People v. Wilson, 17 N.Y.2d 40, 43, 268 N.Y.S.2d 6, 9, 215 N.E.2d 333, 334, that 'when the court imposes that type of (reformatory) sentence without any finding as to reformability there is a necessary implication from the sentence itself that reformation is possible'. We also take note of the wide latitude granted to parole authorities in advance release programs.

All concur, except CARDAMONE, J., who dissents and votes to reverse the judgment insofar as it sentences the defendant and to remit the matter for a hearing in accordance with the following

MEMORANDUM:

I dissent. The required finding (see People v. Wilson, 17 N.Y.2d 40, 268 N.Y.S.2d 6, 215 N.E.2d 333) by the sentencing court that the particular young adult is in need of and will in fact benefit from education, moral guidance, and vocational training to be made...