People v. Gittelson

• Citation: 223 N.E.2d 14,18 N.Y.2d 427,276 N.Y.S.2d 596
• Parties: , 223 N.E.2d 14 The PEOPLE of the State of New York, Respondent, v. Bernard GITTELSON, Appellant.
• Decision Date: 01 December 1966
• Court: New York Court of Appeals Court of Appeals

Page 596

276 N.Y.S.2d 596

18 N.Y.2d 427, 223 N.E.2d 14

The PEOPLE of the State of New York, Respondent, v. Bernard GITTELSON, Appellant.

Court of Appeals of New York.

Dec. 1, 1966.

Joseph E. Brill and Bernard J. Levy, New York City, for appellant.

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

KEATING, Judge.

Bernard Gittelson was the president and treasurer of a rather successful public relations firm in New York City. He was retained by a parking meter company which was desirous of selling its meters to the city.

Mr. Gittelson informed two officers of the company that they could improve their public relations with the city by easing the financial burdens of certain public officials who would presumably have a say in deciding from whom parking meters would be purchased. He indicated that $50,000 would be required to establish this necessary good will. The officers of this company, no doubt concerned that the people of the city have the best operating parking meters available, if not the most honest or effective government, coughed up the money.

Apparently word of this extraordinary idea for improving the public relations of the parking meter company got out. And an investigation of the matter was begun by a New York County Grand Jury.

While appearing before the Grand Jury and immunized from prosecution for any crime to which his testimony related, the defendant deliberately perjured himself. He was subsequently indicted on 27 counts of perjury, of which he pleaded guilty to 10 counts. Following his plea of guilty, the defendant was sentenced to one year in prison on each of the 10 counts--the sentence on each count to run concurrently. He was also fined $5,000 on each count with an alternative six-month sentence in default of payment on each count--the sentences to run consecutively. Thus the over-all effect of the sentence was one year in jail and a $50,000 fine or five additional years in the event of nonpayment.

Finding the sum of $50,000 not as reasonable as he once thought it to be, the defendant appealed to the Appellate Division, charging that the sentences were 'unduly harsh and excessive.' The Appellate Division which has, under section 543 of the Code of Criminal Procedure, complete jurisdiction to review the sentencing Judge's exercise of discretion and reduce sentences which it finds 'unduly harsh and excessive', affirmed the sentence after concluding that it was arrived at 'following a conscientious and thorough investigation and consideration of all relevant factors'.

The defendant now appeals, by permission of the lone dissenting Justice below, from that determination. Before considering the points raised on this appeal it might be worth noting at this point that the defendant, though entitled to a stay in the enforcement of the alternative prison sentence, ¹ has voluntarily paid the $50,000 fine and has also served the one-year prison term.

Since the sentence imposed by the Trial Judge was well within the limits of the statute and since we have no power to review the appropriateness of a discretionary sentence (People v. Speiser, 277 N.Y. 342, 344, 14 N.E.2d 380, 381) we are limited on this appeal to the question of whether the punishment imposed upon this defendant is violative of the due process or equal protection clauses of the Federal or State Constitution.

As to the latter claim, the defendant urges that his liabilities exceeded his assets and, as a result of his indigence, he would serve an alternative prison sentence, whereas a wealthy defendant would pay the fine and go scot free.

In People v. Saffore (18 N.Y.2d 101, 104, 271 N.Y.S.2d 972, 975, 218 N.E.2d 686) we held that, 'when payment of a fine is impossible and known by the court to be impossible, imprisonment to work out the fine, if its results in a total imprisonment of more than a year for a misdemeanor, is unauthorized by the Code of Criminal Procedure and violates the defendant's right to equal protection of the law, and the constitutional bar against excessive fines'.

In that case, unlike the case at bar, the defendant was an indigent who had No assets whatever and whose alternative sentence, in the event of nonpayment, exceeded that authorized in the statute. We need not here engage in an extensive re-examination of the facts in order to determine whether the evidence before the Trial Judge was sufficient to establish the defendant's indigency; nor need we determine whether the indigency or insolvency are necessarily synonymous for the purpose of the questions involved in this appeal. Suffice it to say, that there are few indigents in this country who could have paid a $50,000 fine as the defendant has. And because the defendant has paid the fine and 'was not imprisoned, this case does not involve the 'question whether an alternative sentence of fine or imprisonment is an invalid discrimination between those who are able to pay and those who are not. '' (Wildeblood v. United States, 109 U.S.App.D.C. 163, 284 F.2d 592, 594 (1960).) ²

We turn now to the next point urged by the petitioner that 'The fixation of appellant's sentence with respect to the $50,000 fine with its alternative consecutive prison terms on the basis of considerations wholly foreign to the crime of perjury to which he pleaded guilty, constituted a deprivation of his constitutional right of due process under the State and Federal Constitutions.'

We believe that the factors considered by the Trial Judge at sentencing were...