People v. Burke
| Decision Date | 06 April 1976 |
| Citation | 384 N.Y.S.2d 770,39 N.Y.2d 729,349 N.E.2d 870 |
| Parties | , 349 N.E.2d 870 The PEOPLE of the State of New York, Respondent, v. Charles BURKE, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Michael Lee Hertzberg and William E. Hellerstein, New York City, for appellant.
Mario Merola, Dist. Atty. (Billie Manning, New York City, of counsel), for respondent.
Order affirmed in the following memorandum: The order of the Appellate Division, 47 A.D.2d 716, 366 N.Y.S.2d 368 should be affirmed on the ground that at sentencing the Assistant District Attorney gave his reasons for recommending a minimum sentence, namely, the commission of the crime by knife, the stabbing of the victim because he did not pay the money over fast enough, and that the defendant had a record. Notably the court imposed the minim sentence (with a maximum less than that recommended by the Assistant District Attorney) within seconds after the statement by the Assistant District Attorney. Consequently, it is inferable from its more conclusory recital that the court was incorporating the assistant's references. There was therefore substantial compliance with the statute and its salutary purposes.
FUCHSBERG, J., dissents and votes to reverse in the following opinion.
Today's decision, as I see it, sanctions the interpretation and application of what was intended to be a salutary sentencing statute in a manner which, for all practical purposes, renders it nugatory. An important opportunity is also passed by to take a step forward towards the development of badly needed sentencing standards. For both of these reasons, I respectfully dissent.
Defendant, whose only prior criminal record was a conviction for an attempted sale of marijuana, was found guilty, after a trial at which he took the stand, of robbing a liquor store of approximately $15. Defendant was not armed. However, in the course of the commission of the crime, an accomplice, who absconded before trial, inflicted a minor knife wound on the proprietor of the store. The sentencing Judge imposed an indeterminate sentence whose maximum term was to be 18 years in prison. He also, by mandating that the minimum period of imprisonment be six years, deprived the parole authorities of all power to release the defendant at any earlier time.
Guilt or innocence is not at issue on this appeal. Nor, in view of our court's policy not to review sentences except for illegality or unconstitutionality (People v. Gittelson, 18 N.Y.2d 427, 430, 276 N.Y.S.2d 596, 223 N.E.2d 14; People v. Speiser, 277 N.Y. 342, 344, 14 N.E.2d 380), is our concern here with the maximum limits of the sentence. Rather our focus is solely on the legality of the procedure by which the irreducible six-year minimum was fixed.
In mandating the minimum sentence, the trial court purported to act under section 70.00 (subd. 3, par. (b)) of the Penal Law. That statute, the sole exception to the longstanding employment of the indeterminate term for prison sentences in our State, was enacted in 1967. Its lnaguage, in pertinent part, is as follows: (Penal Law, § 70.00; emphasis supplied.)
In meting out the sentence here, the trial court did not 'set forth in the record the reasons for its action'. In almost Haec verbae, the court merely repeated some of the language by which the statute generally indicates some of the areas of concern to which it was directed, saying only that it was 'giving due consideration to the nature of the offense and the character of the defendant', a clause obviously so lacking in the basic requisites of a Ratio decidendi as to have merited its characterization as but a 'slogan' (Mueller, Imprisonment and Its Alternatives 33, at p. 34 Et seq., A Program for Prison Reform, Final Report of Annual Chief Justice Earl Warren Conference on Advocacy in United States of the Roscoe Pound-American Trial Lawyers Foundation (1972)). Not in the slightest did the court indicate just what it was about the 'nature of the offense and character of the defendant' which motivated it in choosing the minimum sentence it imposed. Nor did it indicate why, to quote other general language of the statute, 'the ends of justice and best interests of the public' required such a disposition.
Except for topical references to the two general categories, it did not discuss any of the many obvious considerations which one would have thought might influence the court, whether they be the defendant's role vis-a -vis his accomplice's in the planning and commission of the crime; his motivation; his premeditation; the degree of danger to which others had been exposed; his family; his and their mental, emotional and physical health; his repentance, if any; his rehabilitation potential; his educational and vocational aptitudes and attitudes; or any of a host of other such factors. there was not even a passing reference to the nonconfidential data in the presentence report (cf. People v. Perry, 36 N.Y.2d 114, 120, 365 N.Y.S.2d 518, 324 N.E.2d 878).
Such omissions were not cured by resort to the reasons which the Assistant District Attorney had used to support His own presentence recommendation. The responsibility for sentencing is the court's and the court's alone, and the duty to set forth its reasons under the statute too rests with the court. So, even though a court is not thereby precluded from adopting the recorded rationale of another as its own, it would have to affirmatively indicate that it was doing so. In the present case, there was no such showing at all. To the contrary, the court in its own sentencing remarks, did not, by so much as a...
To continue reading
Request your trial
-
People v. Walker
...where, as here, the basis of the court's decision may be inferred from the parties' arguments (see, People v. Burke, 39 N.Y.2d 729, 730-731, 384 N.Y.S.2d 770, 349 N.E.2d 870). Distilled to its essentials, defendant's present appellate claim is really nothing more than a disagreement with th......
-
People v. Britt
... ... There was no mystery about the reasons for the stated minimum of five years as part of a five to fifteen year sentence on the highest charge, with lesser concurrent sentences on the remaining convictions. People v. Burke, 39 N.Y.2d 729, 384 N.Y.S.2d 770, 349 N.E.2d 870 (1976); People v. Esteves, 51 A.D.2d 900, 380 N.Y.S.2d 674 (1st Dept., 1976) ... BIRNS, Justice (dissenting): ... I dissent from the affirmation of the judgment of conviction herein, not because of insufficiency of ... ...
-
People v. Esteves
... ... As the Appellate Division indicated, 51 A.D.2d 900, 380 N.Y.S.2d 674, we should not now require that which would be futile and pointless. (cf. People v. Burke, 39 N.Y.2d 729, 384 N.Y.S.2d 770, 349 N.E.2d 870.) ... BREITEL, C.J., and JASEN GABRIELLI, JONES, WACHTLER, FUCHSBERG and ... ...
-
Russo v. New York State Bd. of Parole
...of the Executive Law which require detailed reasons for decisions. No rationale similar to that relied on in People v. Burke, 39 N.Y.2d 729, 384 N.Y.S.2d 770, 349 N.E.2d 870, can be used to salvage respondent's omission in this Assuming, arguendo, that the respondent's decision was otherwis......