People v. Corapi

• Citation: 42 Misc.2d 247,247 N.Y.S.2d 609
• Parties: The PEOPLE of the State of New York, Respondent, v. Raphael CORAPI, Defendant-Appellant.
• Decision Date: 30 January 1964
• Court: New York Supreme Court — Appellate Term

Page 609

247 N.Y.S.2d 609

42 Misc.2d 247

The PEOPLE of the State of New York, Respondent, v. Raphael CORAPI, Defendant-Appellant.

Supreme Court, Appellate Term, First Department.

Jan. 30, 1964.

Frank S. Hogan, Dist. Atty., New York County (Harold Roland Shapiro, Joseph A. Phillips, Asst. Dist. Attys ., of counsel), for respondent.

Simeon F. Gross and Elliot S. Gross, New York City, for defendant-appellant.

Before HOFSTADTER, J. P., and GOLD and TILZER, JJ.

GEORGE TILZER, Justice.

The defendant was convicted of bookmaking in violation of section 986 of the Penal Law. He was sentenced to pay a fine of $100, or, in lieu thereof, to serve five days' imprisonment, and, in addition, to serve five days in prison. He was tried by one Judge of the Criminal Court of the City of New York, and sentenced by another Judge.

The defendant was specifically charged with accepting two bets from two unknown people for the total sum of $10. He took the stand in his own behalf and testified that he was 66 years of age, the father of ten children and had never previously been arrested or convicted of crime. He testified that he was steadily employed as a sewing machine operator and that at the time and place testified to by the police officer, he was in conversation with other people. He denied accepting bets and ultimately testified that at the time of his arrest the police officer requested that he give him $50 as an alternative to the defendant having to pay a lawyer and bondsman and suffer the consequence of an arrest.

Defendant called a fellow worker who testified that he was present at the time of the alleged incident and that he did not hear or observe any bets taken by the defendant. He further testified that he had known the defendant for ten years and had never seen him accept a bet from anybody.

The defendant's foreman testified that he had known defendant for a period of three or four years; that he had not seen defendant taking bets on the day in question and that the defendant's reputation in the shop was that of a good, honest and decent worker.

Several questions are raised on appeal which we regard to be without merit. We have affirmed the conviction of the defendant, yielding to time-honored law which requires an appellate court to leave all questions of fact to be decided by the trial judge. The rule is well settled that on review of a conviction in a criminal case, the question of reasonable doubt must be left to the trial court, and the verdict, or decision of guilt, will not be disturbed. Where, at the conclusion of a trial, a question of fact remains involving an appraisal by a jury of the credibility of witnesses, it has long been deemed to be incapable of satisfactory solution by a study of the printed record on appeal. The advantages which the jury enjoys, after seeing and hearing the witnesses, their appearance, their demeanor, facial expression, and manner of testifying, is said to give the trial court a greater advantage to determine the quantity and quality of the evidence, and in the absence of any statutory grounds, the determination by the court on a question of fact will be conclusive. An appellate court may not substitute its judgment on the facts for the judgment of the trial court or jury (People v. Tendetnick, 237 App.Div. 9, 11, 12, 260 N.Y .S. 777, 778, 780; People v. Lytton, 257 N.Y. 310, 178 N.E. 290, 79 A.L.R. 503; People v. Becker, 215 N.Y. 126, 159, 109 N.E. 127, 137; People v. Arata, 255 N.Y. 374, 375, 174 N.E. 758).

This Court, by this opinion, has modified the sentence originally imposed by reducing it to the time already served [two days]. This decision is by a divided court, one of the Justices dissenting from the modification of the sentence and voting to affirm in all particulars. In dissenting, the minority has seen fit to express his views on the question of punishment and to give his reasons for voting to affirm this sentence. The matter of sentences of punishment and their modification has been a matter of grave concern to this Court and it was deemed necessary, in the circumstances, that the views of the majority be expressed. We were particularly concerned that the language of the minority opinion might be interpreted by some as establishing the policy of this Court in the matter of sentences. Where warranted, of course, we would have not the slightest hesitancy in revising a sentence, as we would be quick to overrule a judgment of the Small Claims Court which rested wholly on hearsay. (See Levins v. Bucholtz, 208 Misc. 597, 145 N.Y.S.2d 79, affd. 2 A.D.2d 351, 155 N.Y.S.2d 770).

The barbarities and cruelties of an early day, when society took over the function of revenge on those individuals who broke its laws, in time gave way to the belief that punishment should be imposed as a deterrent. As Judge Cardozo said in his essay on Law and Literature (Selected Writings of Benjamin Nathan Cardozo, Fallon Publications, 1947, Address before the New York Academy of Medicine, November 1, 1928, at page 379):

'Punishment is necessary, indeed, not only to deter the man who is a criminal at heart, who has felt the criminal impulse, who is on the brink of indecision, but also to deter others who in our existing social organization have never felt the criminal impulse and shrink from crime in horror.'

But the failure of even the most drastic deterrent of all, the death penalty, indicated that punishment was not the answer. As cutting off the hand of a thief had not deterred him from repeating his crime, so incapacitation by imprisonment failed as a deterrent. Far more effective as a deterrent, from the standpoint of the offender and of society, is rehabilitation. 'Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence.' (Williams v. People of State of New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 1084, 93 L.Ed. 1337 [1949].)

But regardless of the form it takes, reformation and rehabilitation to succeed must first of all take into account the offender. As Franklin Delano Roosevelt said in his book 'Looking Forward' some 30 years ago (New York, John Day, 1933):

'Every scrap of authentic information from those who have been waging war against crime and criminals, night and day, reveals that there is but one way we can reduce crime. That is through a policy of prevention. * * * If the criminal's past history gives good reason to believe that he is not of the naturally criminal type, that he is capable of real reform and of becomming a useful citizen, there is no doubt that probation, viewed from the selfish standpoint of protection to society alone, is the most efficient method that we have, and yet it is the least appreciated of all our efforts to rid society of the criminal.' (pp. 205, 208) (Emphasis supplied.)

(See too, Wickersham Commission, National Commission on Law and Observance, Reports, No. 9, Report on Penal Institutions, Probation and Parole, Washington, Government Printing Office, 1931, p. 173.)

This individualized treatment of offenders must begin with the sentence.

Owen J.Roberts, late Associate Justice of the Supreme Court of the United States, welcomed a group of 37 specially selected justices to an historic conference, called in April 1953 by the National Probation and Parole Association, in the City of New York. The outcome of this conference was the formation of an Advisory Council of Judges of the National Probation and Parole Association. In 1957, the Council published 'Guides for Sentencing', a work of utmost value to the judges of the nation's courts in meeting the highly controversial problems of sentencing. And in October of this year, the Advisory Council of Judges of the National Council on Crime and Delinquency published its Model Sentencing Act, a statute designed to conform to the best concepts of modern penology. Section 1 of the Act, entitled 'Liberal Construction' provides as follows:

'This act shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender of shall be committed for a limited period.' (Emphasis supplied.)

The comment on Section 9 entitled 'Sentencing for Felonies Generally', quotes the following:

'More frequent use of suspension of sentence without probation, like the fine, is part of the answer to the prison problem. The national average use of probation is probably about one-third of felony convictions. Many of our informed students of crime tell us that it can safely be two-thirds, and that public security would not be damaged with that percentage of usage.' (p. 361) (Bolitha, J. Laws, Chief Judge, United States District Court, Washington, D. C., Laws, Criminal Courts and Adult Probation, 3 NPPA J. 357-358 [1957].)

It must be noted that the individualized treatment of the offender, as the Supreme Court of the United States observed (Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 [1949]), has not

'resulted in making the lot of offenders harder. On the contrary a strong motivating force for the changes has been the belief that by careful study of the lives and personalities of convicted offenders many could be less severely punished and restored sooner to complete freedom and useful citizenship. This belief to a large extent has been justified.' (337 U.S. p. 249, 69 S.Ct. p. 1084, 93 L.Ed. 1337.)

Particularly apposite so far as the differences between the majority and minority opinions herein, is the language of the ...