People v. Gross

• Decision Date: 12 March 1958
• Parties: The PEOPLE of the State of New York, Respondent, v. Harry GROSS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 432

172 N.Y.S.2d 432

5 A.D.2d 878

The PEOPLE of the State of New York, Respondent, v. Harry GROSS, Appellant.

Supreme Court, Appellate Division, Second Department.

March 12, 1958.

Michael Kern, New York City, for appellant.

William I. Siegel, Brooklyn, for respondent.

Before NOLAN, P. J., and WENZEL, BELDOCK, UGHETTA and HALLINAN, JJ.

MEMORANDUM BY THE COURT.

Appeal from a judgment of the County Court, Kings County, revoking appellant's probation and sentencing him to the New York City Penitentiary for an indeterminate term not exceeding three years. On March 30, 1955, appellant pleaded guilty to one of numerous counts in an indictment charging him with criminal contempt of court. Thereupon the court suspended sentence and placed appellant on probation for one year. On or about February 1, 1956, following a charge that appellant had violated the terms of his probation, the court imposed the sentence under review. At the request of the parties this appeal has been heard on the record on appeal in People ex rel. Kern (Gross) v. Silberglitt, 4 N.Y.2d 59, 172 N.Y.S.2d 145.

Judgment reversed on the law.

Upon sentencing appellant, the County Judge under pertinent statutes had a choice between two kinds of imprisonment. He could have ordered confinement in a penal institution for not more than one year (Penal Law, §§ 600, 1937) or in a reformatory-type of institution for an indeterminate term not exceeding three years (Correction Law, § 203). The latter alternative, however, was forbidden for any convicted person who was 'mentally or physically incapable of being substantially benefited' by reformatory treatment (Correction Law, § 203). There is duty upon a sentencing judge to determine, before imposing sentence, whether a prisoner is capable of reformation, and where there is an unequivocal affirmative finding that the offender is incapable of being substantially benefited, the imposition of a sentence under article 7-A of the Correction Law is unlawful (People ex rel. Kern [Gross] v. Silberglitt, supra). Here the sentencing Judge, at length and apparently with considerable vehemence, found that 'You can no more change him [appellant] the longest day he lives tha[n] you will take the spots off a leopard. He will never be any different. He cannot be; it is part of the very being, it is part of the very blood that courses through his veins'; thrice the County Judge stated 'I do not think he will ever change'; he did not think 'it is in him' 'to...