People v. Flynn

• Decision Date: 18 January 1962
• Citation: 223 N.Y.S.2d 441,32 Misc.2d 155
• Parties: The PEOPLE of the State of New York v. William FLYNN, Defendant.
• Court: New York Court of General Sessions

Page 441

223 N.Y.S.2d 441

32 Misc.2d 155

The PEOPLE of the State of New York v. William FLYNN, Defendant.

Court of General Sessions, New York County.

Jan. 18, 1962.

Frank S. Hogan, Dist. Atty., New York County, James F. Gill, Asst. Dist. Atty., New York City, Louis J. Lefkowitz, Atty. Gen., for the State.

Rudolph Stand, New York City, for defendant.

BENJAMIN GASSMAN, Judge.

This motion is made by the defendant for a modification of the sentence heretofore imposed upon him on June 16, 1943. It calls for a review of the facts in this case.

On January 30, 1942, the defendant was indicted on the charge of robbery in the first degree, committed on January 22, 1942 (Indictment No. 230,700). On the same date, he was also indicted on the charge of criminally carrying concealed a loaded pistol after prior conviction (Indictment No. 230,701). The latter crime was committed at the same time and place as the robbery referred to in the first mentioned indictment. On February 16, 1942, the defendant was indicted of murder in the first degree, committed on January 21, 1942 (Indictment No. 230,836).

He was brought to trial on the murder charge before the late Judge Jacob Gould Schurman and a jury on October 8, 1942, and was convicted of murder in the first degree. On October 22, 1942, he was sentenced to the death penalty. On April 15, 1943, the Court of Appeals reversed the judgment of conviction and ordered a new trial (290 N.Y. 220, 48 N.E.2d 495).

Thereafter, on May 21, 1943, the defendant pleaded guilty before the late Judge Wallace (1) to murder in the second degree, under Indictment No. 230,836; (2) to robbery in the first degree, under Indictment No. 230,700; and (3) to criminally carrying concealed a loaded pistol, under Indictment No. 230,701. On June 16, 1943, the defendant, as a second felony offender, was sentenced by Judge Wallace to a term of thirty years to life on the murder plea; to a term of thirty years to sixty years on the robbery plea, the second sentence to run consecutively to the murder sentence; and to a term of seven to fourteen years on the pistol plea, the last mentioned sentence to run concurrently with the above two sentences.

The defendant is now confined in Green Haven Prison, where he is serving the first sentence. He has not yet started to serve the second sentence.

On this motion, the defendant asks consideration by the court of a modification of the robbery sentence. His counsel, on the argument of the motion, appealed to this court to modify the said sentence by making it concurrent with the first sentence or by reducing the second sentence, so that the defendant might receive a hearing before the Parole Board.

Even if the court were impelled to do so, it has not the power to direct that the robbery sentence be concurrent with the sentence on the murder plea. The power to exercise any clemency is governed by Section 2188 of the Penal Law, which determines the extent to which the court may go, and that power does not extend to the direction that the second sentence run concurrently with the first one. (People ex rel. De Santis v. Warden of New York City Penitentiary, 176 Misc. 844, 29 N.Y.S.2d 266, affirmed 262 App.Div. 1003, 30 N.Y.S.2d 845). It is limited to the suspension of the sentence or suspension of the execution of such sentence (People v. Thuna, 266 App.Div. 223, 225, 41 N.Y.S.2d 857, 858), and may not be exercised, even under that section, '(c) if the person is convicted of a felony committed while armed with a weapon as provided in section nineteen hundred forty-four' (Sec. 2188 Penal Law), or after imprisonment under such sentence shall have commenced.

Prior to May 8, 1942, Section 1941 of the Penal Law provided that a defendant who was a second or third felony offender 'must be sentenced to imprisonment for an indeterminate term the minimum of which shall be not less than the longest term prescribed upon a first conviction and the maximum of which shall be twice such term'. The maximum sentence on a first conviction for robbery in the first degree was then, as now, thirty years. By Chapter 700 of the Laws of 1942, the Legislature amended Section 1941 by reducing the minimum sentence for a second or a third felony offender to 'not less than one-half of the longest term prescribed upon a first conviction'. That amendment became a law on May 8, 1942, and provided that 'this act shall * * * apply only to crimes committed on and after the effective date of this act'. The robbery, to which the defendant pleaded guilty was committed on January 22, 1942. Accordingly, the sentence imposed by Judge Wallace was a legal sentence.

There are several questions presented to this motion. (1) Has the court, at this late date, the power to suspend execution of the robbery sentence? (2) Assuming that it has, is the exercise of such power prohibited by the provision that no suspension shall be granted to any defendant committing a felony while armed? Assuming that the first question is answered in the affirmative and the second in the negative, has the defendant shown any reason why execution of his sentence should be suspended?

In People ex rel. Woodin v. Ottaway, 247 N.Y. 493, the court, at page 495, 161 N.E. 157, 158, said: 'Jurisdiction to stay the execution did not expire with the term at which the prisoners were tried. Like the power to revoke the suspension, it was not confined to one term nor even to one judge, but was vested in the court. People v. Bork, 96 N.Y. 188, 198; Moett v. People, 85 N.Y. 373, 383; People v. Everhardt, 104 N.Y. 591, 11 N.E. 62; People v. Nesce, 201 N.Y. 111, 94 N.E. 655; People v Brown, 153 App.Div. 234, 138 N.Y.S. 7; People v. Graves, 31 Hun, 382: State ex rel. Gerhrmann [Gehrmann] v. Osborne, 79 N.J.Eq. 430, 439, 82 A. 424. The one limitation upon the time of its exercise is stated in the statute (Penal Law, § 2188): 'The imprisonment directed by the judgment shall not be suspended or interrupted after such imprisonment shall have commenced.' Cf. United States v. Murray , and Cook v. United States , 48 S.Ct. 146, 72 L.Ed. 309, Jan. 3, 1928.'

See also, People v. Thuna, supra, 266 App.Div. at page 225, 41 N.Y.S.2d at page 858.

The robbery sentence not having commenced yet, this court, therefore, has the power to consider defendant's plea, provided that it has not been established that the defendant was armed when he committed the robbery.

The first count in the indictment, which is the robbery count, charges the defendant with having committed robbery while aided by accomplices actually present and while they were armed with pistols. The endorsement on the indictment shows that on May 21, 1943, the defendant pleaded guilty to 'robbery in the first degree'. The court examined the clerk's minutes of May 21, 1943, and they contain a similar entry. There is no mention either on the indictment or in the clerk's minutes that the defendant pleaded guilty to armed robbery. The sentencing minutes of June 16, 1943 were read by the court. Considering the fact that Judge Wallace did not spare the defendant when he imposed the sentences upon...