People v. Green

• Citation: 40 Misc.2d 772,244 N.Y.S.2d 292
• Parties: PEOPLE of the State of New York v. Max GREEN, Defendant.
• Decision Date: 28 October 1963
• Court: New York Supreme Court

Page 292

244 N.Y.S.2d 292

40 Misc.2d 772

PEOPLE of the State of New York v. Max GREEN, Defendant.

Supreme Court, Special and Trial Term, Bronx County, Part XII.

Oct. 28, 1963.

Isidore Dollinger, Dist. Atty. of Bronx County, for the people.

Frances Kahn, New York City, for defendant.

SAMUEL J. SILVERMAN, Justice.

The defendant moves for an order dismissing this indictment on the ground that this court has lost jurisdiction by reason of an extremely long and unreasonable delay in sentencing defendant, and apparently in the alternative for an order directing the return of defendant from Michigan State Prison to this court for final disposition of the indictment.

Defendant was convicted in Michigan in 1945 on two charges of conspiracy and armed robbery and was sentenced to serve concurrent terms of 4 1/2 to 5 years, and 25 to 50 years. The Michigan Supreme Court affirmed the convictions on October 4, 1948. Defendant, however, had absconded from the State of Michigan.

He was arrested and indicted in Bronx County in 1951 under the present indictment. In July 1951 defendant pleaded guilty to grand larceny, 2nd degree. On July 26, 1951, when defendant came up for sentence, the Bronx County Court deferred sentence and directed that this defendant be handed over to the Michigan authorities to serve the two outstanding sentences. Apparently this was done at the suggestion of defendant's attorney.

Shortly after August 22, 1951, defendant was returned to Michigan where he was first turned over to the Federal authorities and tried on a charge of unlawful flight to avoid confinement. On February 12, 1952, the Federal court sentenced him to five years' imprisonment to run concurrently with his Michigan State sentences, saying that in view of the long sentences which were outstanding against defendant in Michigan courts, under which Michigan could hold defendant until he was 94 years old, there was no point to sentencing defendant to a Federal penitentiary. Defendant has been confined in Michigan State Prison since February 1952.

This is the third application made by this defendant to terminate or bring this Bronx County indictment to a judgment.

In May 1960 a motion was made to withdraw the warrant lodged on this indictment against him in the State of Michigan, for permission to withdraw his guilty plea or alternatively that judgment be imposed upon him. This application was denied by Judge Schulz of the then Bronx County Court on the ground that although sentence had been improperly deferred, there was no legal basis for withdrawal of the warrant of this court lodged against defendant in Michigan, and that this court had no power to direct the appropriate Michigan authorities to return this defendant to The Bronx.

In 1961, the Court of Appeals in People ex rel. Harty v. Fay, 10 N.Y.2d 374, 223 N.Y.S.2d 468, 179 N.E.2d 483 [1961] held that a long and unnecessary delay in sentencing results in a loss of jurisdiction by the court. Thereafter, in February 1962 defendant made a motion to dismiss this Bronx County indictment on the ground that the court had lost jurisdiction. This motion was denied by Mr. Justice Korn, who said that the Harty case was inapplicable since in Harty the defendant was confined in a New York State prison and so subject to being produced for sentence at any time. Mr. Justice Korn went on to say: 'Unles...