People v. Jones

• Decision Date: 09 June 1966
• Citation: 218 N.E.2d 291,271 N.Y.S.2d 240,17 N.Y.2d 404
• Parties: , 218 N.E.2d 291 The PEOPLE of the State of New York, Appellant, v. Nicholas Cecil JONES, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 240

271 N.Y.S.2d 240

17 N.Y.2d 404, 218 N.E.2d 291

The PEOPLE of the State of New York, Appellant, v. Nicholas Cecil JONES, Respondent.

Court of Appeals of New York.

June 9, 1966.

Leonard Rubenfeld, Dist. Atty. (James J. Duggan, Tuckahoe, of counsel), for appellant.

Kenneth J. Finger, New York City, for respondent.

DESMOND, Chief Judge.

In July, 1963 defendant-respondent, after conviction of robbery, third degree, in Westchester County, was charged as a second felony offender and was sentenced as such on a showing that he had earlier been convicted of grand larceny, second degree, in 1952 in Queens County. Effective April 10, 1964, section 1943 of the Penal Law, Consol.Laws, c. 40 was amended in such manner as to provide in effect that a previous conviction in this or any other State shall not be utilized as a predicate for multiple offender treatment if the earlier conviction was obtained in violation of the United States Constitution.

In December, 1964, eight months after the amendment took effect, defendant moved the Westchester County Court for resentence, asserting that a 1952 Queens County conviction was unavailable as a predicate for treating him as a second offender because it had been obtained in such manner as to violate his Federal constitutional rights. The Westchester County Court denied defendant's motion without a hearing, citing its own decision of the same day in People v. Esposito, 50 Misc.2d 120, 270 N.Y.S.2d 548. In substance the Esposito opinion said that the 1964 amendment to section 1943 despite its language does not apply so as to permit a defendant, sentenced as a recidivist, to challenge, after April, 1964, on a motion for resentence the constitutionality of a prior conviction in a New York court. The Esposito opinion cited the Governor's message approving the 1964 amendment in which the Governor noted that in situations where an earlier conviction had been obtained in New York there had always been opportunity under other laws (presumably by Coram nobis) to challenge its constitutionality, but that if the prior conviction sought to be challenged for unconstitutionality had been obtained in another jurisdiction there was before the 1964 amendment no procedure under New York laws for challenging the earlier conviction no matter how 'patently unconstitutional' it might be. The Westchester County Court in this case and in Esposito concluded that the new 1964 language in section 1943 operates only when the prior conviction sought to be challenged was had in another State. The difficulty with that is, of course, that the new language in section 1943 refers to a 'previous conviction in this or any other state'.

Defendant appealed to the Appellate Division, Second Department, which held: first, that the 1964 amendment has retroactive effect and, second, that the statute by clear and unambiguous language permits a defendant to challenge for constitutionality a previous conviction 'in this or any other state'. The Appellate Division majority cited our decision in People v. Machado, 17 N.Y.2d 440, 266 N.Y.S.2d 525, 213 N.E.2d 804, as holding that for appeal purposes an application for resentence under section 1943 is to be treated as one for Coram nobis relief.

The Justice who dissented alone at the Appellate Division concluded that, '(i) n view of the mischief to be corrected, it seems plain that the intent of the Legislature in amending section 1943 of the Penal Law in 1964 was limited to out-of-State convictions'. He remarked--and in this he was clearly correct--that the principal evil at which the 1964 amendment was directed was this: when a prisoner was charged as being a second, third or fourth offender, there was no procedure in New York law whereby he could claim that one or more of the earlier convictions rendered outside the State was gotten in violation of his constitutional rights. Be that as it may and conceding that this was probably the principal purpose of the amendment, we find no way of getting around the statutory language 'previous conviction in this or any other state'.

Section 1943 of the Penal Law, before the 1964 amendment, set out the procedure to be followed when a defendant after a felony conviction was charged with having previously been convicted of another felony. It then provided that an information had to be filed charging the previous convictions and that the defendant had to be informed of his right to be tried thereon. A defendant was asked whether he was the same person named in the previous conviction or convictions and if he denied that fact or remained silent there had to be a jury trial to decide whether he was the same person. If he admitted it, or was tried and found to be the same person, he would be convicted as a recidivist.

In 1949 in People v. McCullough, 300 N.Y. 107, 89 N.E.2d 335, this court held that when charged with being a multiple offender a defendant could not litigate the constitutionality of one of the prior convictions except in the court where that conviction had been rendered, from which it followed that when the prior conviction was in a foreign State there was no remedy here for attacking it. In 1963 in People v. Wilson, 13 N.Y.2d 277, 246 N.Y.S.2d 608, 196 N.E.2d 251, we held again that under such circumstances a foreign State conviction could not be attacked for unconstitutionality in our court. However, in the Wil...