People v. Dusablon

• Decision Date: 10 June 1965
• Citation: People v. Dusablon, 261 N.Y.S.2d 38, 16 N.Y.2d 9, 209 N.E.2d 90 (N.Y. 1965)
• Parties: , 209 N.E.2d 90 The PEOPLE of the State of New York, Respondent, v. Henry DUSABLON and Emanuel Samperi, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 38

261 N.Y.S.2d 38

16 N.Y.2d 9, 209 N.E.2d 90

The PEOPLE of the State of New York, Respondent, v. Henry DUSABLON and Emanuel Samperi, Appellants.

Court of Appeals of New York.

June 10, 1965.

Martin Fogelman, New York City, for Henry Dusablon, appellant.

Alfred I. Rosner, Henry A. Lowenberg and Martin B. Rosner, New York City, for Emanuel Samperi, appellant.

Frank S. Hogan, Dist. Atty. (H. Richard Uviller and Milton M. Stein, New York City of counsel), for respondent.

VAN VOORHIS, Judge.

Section 1045-a of the Penal Law, Consol.Laws, c. 40, is not ex post facto, nor was it error to have received nonlegal evidence at the trial determining punishment (People ex rel. Lonschein (Mencher) v. Warden of Queens House of Detention, 15 N.Y.2d 663, 255 N.Y.S.2d 876, 204 N.E.2d 206; 43 Misc.2d 109, 250 N.Y.S.2d 15). The former crimes committed by appellants could constitutionally have been considered by a sentencing Judge as germane to probation reports (Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337), and, as pointed out in Lonschein, section 1045-a of the Penal Law merely substitutes a jury for a Judge in imposing sentence in this situation. The criminal records of appellants could not, under the former procedure, have been before the jury (People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193). It is possible that, if the jury had not known of appellants' prior criminal records, they might have crecommended life imprisonment in the case of either or both of them, particularly, perhaps, in case of the one who did not fire the fatal shot in this felony murder. Nenvertheless, under the former statute, a recommendation of life imprisonment instead of death was not binding upon the Trial Judge, who was empowered to sentence to death even though the jury recommended life imprisonment (People v. Ertel, 283 N.Y. 519, 522, 29 N.E.2d 70, 71). The idea behind that statute may have been that, in cases such as the present, where a record of prior homicides was before the sentencing Judge but no before the jury, the Judge could impose the more drastic punishment based on circumstances known to him but unknown to the trial jury. However that may be, the circumstance that under the former practice the Trial Judge possessed this power, which could have been exercised in the light of all of the testimony which was before the 'sentencing' jury in this instance, prevents the new procedure from being ex post facto. The change is procedural, under which the 'sentencing' jury acts upon what would previously have been before the Trial Judge. This does not render the new statute ex post facto (People ex rel. Lonschein (mencher) v. Warden of Queens House of Detention, supra).

Under present subdivision 3 of section 1045-a 'evidence may be presented by either party on any matter relevant to sentence including, but not limited to, the nature and circumstances of the crime, defendant's background and history, and any aggravating or mitigating circumstances. Any relevant evidence, not legally privileged, shall be received regardless of its admissibility under the exclusionary rules of evidence.' The court so instructed the jury in this instance, nor was it error to omit to charge that there was any burden of proof on either side. Whatever evidence would have been relevant in the case of a probation report, or otherwise to be considered by a sentencing Judge, is properly admissible before the sentencing jury.

The instruction was not erroneous that it would be possible for a defendant who has been sentenced to life imprisonment to be placed on parole after he had served 26 years and 8 months (Penal Law, § 1945, subd. 6; Correction Law, Consol.Laws, c. 43, § 230, subd. 2). Subdivision 4 of section 1045-a requires that the court charge the 'sentencing' jury on 'the law relating to the possible release on parole of a person sentenced to life imprisonment.' The trial court here performed this obligation imposed on him by law. Appellants challenged the correctness of this instuction on the ground that each was convicted on two counts of felony murder (due to two victims having been killed), and assert that the jury should have been charged that the jury could direct that each appellant serve two life sentences consecutively. Apart from the impossibility of sentencing the same defendant to serve several life sentences, one after the other, it is plain that public policy as declared by the Legislature requires that no person sentenced for life shall be ineligible for parole after the lapse of 26 years and 8 months as charged by the court in this case. The prohibition of suspension of a sentence for a crime punishable by life...