People v. Kinney

• Decision Date: 09 April 1970
• Citation: 34 A.D.2d 728,312 N.Y.S.2d 375
• Parties: PEOPLE of the State of New York, Respondent, v. Earl Sherwood KINNEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 375

312 N.Y.S.2d 375

34 A.D.2d 728

PEOPLE of the State of New York, Respondent, v. Earl Sherwood KINNEY, Appellant.

Supreme Court, Appellate Division, Fourth Department.

April 9, 1970.

L. Edward Monaghan, Canandaigua, for appellant.

Willard C. Best, Dist. Atty., Canadaigua, for respondent.

Before DEL VECCHIO, J.P., and MARSH, MOULE, BASTOW, and HENRY, JJ.

MEMORANDUM.

On November 10, 1961 defendant then about 25 years of age, pleaded guilty to three counts of an indictment accusing him of endangering the life and health of a child contrary to § 483 of the Penal Law, one count charging rape in the second degree in violation of § 2010 and one count charging assault second degree in violation of § 242, subd. 5. He was sentenced to Attica for an indeterminate term of one day to life. Thereafter upon proceedings instituted in 1963 he was resentenced to a one day to life term. In November 1967 (28 A.D.2d 1202, 286 N.Y.S.2d 218) we vacated this sentence and ordered a new and current psychiatric examination and a proper report which meets the requirements of § 2189--a of the Penal Law as construed by People v. Jackson, 20 A.D.2d 170, 245 N.Y.S.2d 534. Following the examination and submission of the report, a hearing was held in November 1968 as mandated by People v. Bailey, 21 N.Y.2d 588, 289 N.Y.S.2d 943, 237 N.E.2d 205, to determine whether defendant is a danger to society or is capable of being benefited by confinement. The testimony at that hearing and the material in the psychiatrists' report disclose that defendant has received as much individual and group psychotherapy as can be profitable to him in an institutional setting and would not benefit from additional psychiatric treatment in an institution. It also appears that there are no indications of mental illness in this man. With regard to the question of further 'danger to society', two psychiatrists who examined defendant in May 1968 expressed an opinion that nothing can be said with any degree of scientific validity and could not state one way or the other whether defendant would be a danger to society if he is unconditionally released. The third psychiatrist, who became acquainted with this case in 1962, saw defendant eleven times thereafter and examined him in October 1968, expressed an opinion that defendant is a true alcoholic, that his future mental stability and behavior depend on complete abstinence and to be a constructive and safe member of society there must be supervision ...