People v. Daiboch

• Citation: 265 N.Y. 125,191 N.E. 859
• Parties: PEOPLE v. DAIBOCH.
• Decision Date: 03 July 1934
• Court: New York Court of Appeals Court of Appeals

265 N.Y. 125

191 N.E. 859

PEOPLE

v.DAIBOCH.

Court of Appeals of New York.

July 3, 1934.

Abraham M. Daiboch pleaded guilty to forgery in the second degree, and was subsequently charged and convicted as a second offender. From a judgment of the Appellate Division (240 App. Div. 153, 269 N. Y. S. 321) reversing the judgment of conviction as a second offender, the People appeal by permission of the Appellate Division, and from so much of the judgment as unanimously affirmed the order of the Court of General Sessions denying defendant's motion to withdraw his plea of guilty, defendant appeals by permission of the Appellate Division.

Judgment of the Appellate Division on the appeal by the People reversed, and judgment of the General Sessions affirmed; and on the appeal by defendant, judgment in so far as appealed from affirmed.

Appeal from Supreme Court, Appellate Division, First department.

William Copeland Dodge, Dist. Atty., of New York City (John C. McDermott, of New York City, of counsel), for the People.

Hyman Bushel and Samuel Gottieb, both of New York City, for defendant.

CRANE, Judge.

The defendant was indicted in New York County, Court of General Sessions, for forgery in the second degree. On December 7, 1932, he pleaded guilty and was sentenced to an indeterminate term of not less than three years and not more than ten years in state prison. Later he was sent back by the warden of Sing Sing for resentence as a second offender when it was discovered that in 1924 he had been convicted of a felony in New Jersey. Pursuant to the procedure outlined in section 1943 of the Penal Law (Consol. Laws, c. 40) and People v. Gowasky, 244 N. Y. 451, 155 N. E. 737, 58 A. L. R. 9, an information was lodged against him and he was found to be the person previously adjudged in New Jersey to be guilty of the crime of defrauding the Mutual Bank of Roseville, N. J., by a false check of $1,000, a felony in this state, and was thereupon sentenced by the Court of General Sessions as a second offender to nine years, eight months, and seven days; the court having deducted three months, seven days, the time served before he was sent back for resentence. The judgment has been reversed by the Appellate Division upon the law only, the facts having been affirmed. The court was of the opinion that the plea of non vult in the New Jersey court, followed by a judgment placing the defendant on probation for two years and to pay 25 cents a week for the same period, was not a previous conviction of crime. Two of the justices dissented. In this determination we think the court was in error.

The plea of ‘non vult’ or ‘nolo contendere’ is an ancient plea in criminal cases still in use in some of the states but abolished here. It simply means that the defendant will not contend against the charge but will submit to such punishment as the court inflicts, usually less than would have been imposed after a plea of guilty. The court, however, on such a plea may sentence the prisoner to the same punishment as if convicted after a trial or on a plea of guilty. Aside from the ameliorating effect the plea of non vult has the same consequences in a criminal court as a plea of guilty; at least, it is a conviction of the crime to which the plea is taken. In civil cases, however, the plea cannot be used or taken as an admission of the facts alleged in the indictment. Hudson v. United States, 272 U. S. 451, 47 S. Ct. 127, 71 L. Ed. 347;United States v. Norris, 281 U. S. 619, 50 S. Ct. 424, 74 L. Ed. 1076;State v. Martin, 92 N. J. Law, 436, 106 A. 385, 17 A. L. R. 1090;State v. Henson, 66 N. J. Law, 601, 50 A. 468, 616;State v. Duelks, 97 N. J. Law, 43, 116 A. 865;Commonwealth v. Ingersoll, 145 Mass. 381, 14 N. E. 449;Commonwealth v. Marino, 254 Mass, 533, 150 N. E. 841;State v. Herlihy, 102 Me. 310, 66 A. 643;State ex rel. McElliott v. Fousek, 91 Mont. 457, 8 P.(2d) 795, 81 A. L. R. 1099;Commonwealth ex rel. D. A. v. Jackson, 248 Pa. 530, 94 A. 233;State v. Radoff, 140 Wash. 202, 248 P. 405;Schad v. McNinch, 103 W. Va. 44, 136 S. E. 865;Brozosky v. State, 197 Wis. 446, 222 N. W. 311.

The trial justice was well able to determine the effect of the plea of non vult, it being known to the common law and, as the above cases indicate, in frequent use in this country. There was no need for oral testimony from a New Jersey lawyer when the judge could read the books. Fitzpatrick v. International R. Co., 252 N. Y. 127, 169 N. E. 112, 68 A. L. R. 801. Cf. Laws 1933, c. 690.

The Penal Law, § 1941, provides: ‘A person, who after having been convicted * * * under the laws of any other state * * * of a crime which, if committed within this state, would be a felony, commits any felony, within this state, is punishable upon conviction of such second offense, as follows:’

The defendant came within this section and was properly sentenced as a second offender.

Before the first sentence was imposed the judge knew of the prior offense and had no right or power to impose an indeterminate sentence. The records of the proceeding on December 7, 1932, the day of original sentence, show that District Attorney MacDonnell appeared for the People and Hyman Bushel for the defendant. Here is what took place:

‘The Clerk: What have you now to say why judgment of the Court should not be pronounced against you according to law?

‘Mr. MacDonnell: In this case I understand it turned out the defendant is a prior offender. * * *

‘The Court: Now, Mr. MacDonnell.

‘Mr. MacDonnell: We took a plea, when you were in Part II, in this case. Your Honor told Mr. Bushel, the defendant's attorney, that if the defendant turned out to be a second offender you would permit him to withdraw his plea and plead to a misdemeanor.

‘The Court: I did not tell him that. If, you did, that it different.

‘Mr. MacDollell: The...