People v. Griffin

• Decision Date: 01 April 1960
• Citation: 7 N.Y.2d 511,199 N.Y.S.2d 674,166 N.E.2d 684
• Parties: , 166 N.E.2d 684 PEOPLE of the State of New York, Respondent, v. Alvin GRIFFIN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 674

199 N.Y.S.2d 674

7 N.Y.2d 511, 166 N.E.2d 684

PEOPLE of the State of New York, Respondent, v. Alvin GRIFFIN, Appellant.

Court of Appeals of New York.

April 1, 1960.

Frederic G. Corneel and Anthony F. Marra, New York City, for appellant.

Edward S. Silver, Dist. Atty., Brooklyn (William I. Siegel, David Diamond and Raymond J. Scanlon, Brooklyn, of counsel), for respondent.

VAN VOORHIS, Judge.

The relator has appealed from the affirmance of an order dismissing a coram nobis application. Appellant contends that he was misled respecting sentence in pleading guilty to a lesser offense than was charged in the indictment.

The indictment charged assault in the second degree in two counts committed upon the same victim on the same date. The first count alleged the infliction of grievous bodily harm (Penal Law, Consol.Laws, c. 40 § 242, subd. 3). The second count, omitting the infliction of grievous bodily harm, charged an assault with an instrument, weapon or thing likely to produce grievous bodily harm (Penal Law, § 242, subd. 4).

Appellant pleaded not guilty to both counts, but the Assistant District Attorney recommended acceptance of a plea of 'guilty to the crime of an attempt to commit the crime of assault in the second degree to cover all counts of the indictment.' In interposing this plea, appellant was led to believe that his punishment would be less severe than though he had pleaded to either of the charges of assault. Except in capital cases or life imprisonment, a person convicted of an attempt 'is punishable by imprisonment for not more than half of the longest term, or by a fine of not more than one-half of the largest sum prescribed upon a conviction for the commission of the offense attempted or by both such fine and imprisonment' (Penal Law, § 261, subd. 2). Assault in the second degree is punishable by imprisonment for a term not exceeding 5 years or by a fine of not more than $1,000 or both (Penal Law, § 243). The maximum punishment for an attempt to commit this crime is a prison term of 2 1/2 years or a fine of not more than $500, or both. This appellant received an indeterminate sentence of from 6 years and 3 months to 12 years and 6 months. The explanation is as follows: To the surprise of appellant, after his plea to an attempt had been accepted, the County Judge conducted a hearing at which he called the complaining witness who testified that appellant hit him on the head with a child's baseball bat and stabbed him with a knife. The witness was unable to say what kind of a knife it was except that it was about three inches long. Then the County Judge called a detective who saw appellant in the station house, but did not recollect having seen the baseball bat or the knife. Appellant's attorney inquired 'the reason for this proceeding in view of the fact that he had already pleaded guilty to attempted assault in the 2nd degree?' to which the Judge replied: 'The reason is to determine the nature of the weapon or weapons that were used; to determine whether or not the defendant comes within the purview of the statute in such case made and provided concerning increased punishment.' The appellant then took the stand and testified that the baseball bat was a souvenir, a little over a foot long, 'Like the one you get at Ebbets Field', weighing less than a pound, and that the knife was a kitchen paring knife. The Judge then stated that 'The Court finds that the defendant was armed with a dangerous weapon that comes within the purview of the statute; to wit, the knife and that he is, therefore, amenable to added punishment under the Penal Law' (§ 1944).

An additional sentence of 5 to 10 years in Sing Sing was imposed, making the total sentence from 6 years and 3 months to 12 years and 6 months. The additional sentence under section 1944 of the Penal Law is the same for attempting to commit a felony as in the case of the commission of the felony, with the consequence that the total punishment was but slightly less than the maximum to which appellant could have been subjected if he had pleaded guilty to the indictment charging assault in the second degree. It is well established that section 1944 of the Penal Law is applicable to an attempted felony as well as to a felony, and that it does not create a separate crime but increases the penalty for a felony committed or attempted (People v. Paradiso, 248 N.Y. 123, 126, 161 N.E. 443, 444; People ex rel. Temple v. Brophy, 248 App.Div. 442, 444, 290 N.Y.S. 2, 4; People v. Krennen, 264 N.Y. 108, 190 N.E. 167).

If appellant had pleaded guilty to the crime charged in the indictment, or had been convicted after trial, it would have been proper for the court to have taken testimony to determine whether appellant was armed in order to determine the question of increased punishment (People v. Caruso, 249 N.Y. 302, 164 N.E. 106; People v. Krennen, supra). Here, however, appellant did not plead guilty to any count in this indictment. His plea was to a lesser crime which the court is authorized to accept on recommendation of the prosecuting officer (Code Crim.Proc. § 342-a). Section 334 defines the form of pleas to indictments. Unless it sets forth a former conviction or acquittal, the plea (with an exception pertinent here) must state that the defendant pleads that he is guilty or not guilty of the crime charged in the indictment. The exception relates to pleas to lesser crimes. Where that occurs, the defendant does not admit the facts charged against him in the indictment. He pleads guilty to something else. Subdivision 2 of section 334 directs that 'If he plead guilty to any lesser crime than that charged in the indictment' the substance of his plea shall be that "the defendant pleads guilty to the crime of' (naming it).' Such a plea does not presuppose the truth of the facts pleaded in the indictment. Consequently it accomplishes nothing for the Judge to institute an inquiry concerning the facts alleged in the indictment, since the defendant has pleaded guilty to another crime. His plea only...