People v. Kolodny

• Decision Date: 23 October 1959
• Parties: PEOPLE of the State of New York, Respondent, v. Armand KOLODNY, Defendant-Appellant.
• Court: New York Supreme Court

Page 735

194 N.Y.S.2d 735

20 Misc.2d 267

PEOPLE of the State of New York, Respondent, v. Armand KOLODNY, Defendant-Appellant.

Supreme Court, Special Term, Nassau County, Part I.

Oct. 23, 1959.

Manuel W. Levine, Dist. Atty. of Nassau County, Mineola, for respondent.

Emil K. Ellis, and Bernard Reich, New York City, for defendant-appellant, Jonas Ellis, and Maurice Shire, New York City, of counsel.

MARIO PITTONI, Justice.

The defendant applies for a certificate of reasonable doubt pending his appeal to the Appellate Division of the Supreme Court from a judgment of conviction of the crime of Grand Larceny, Second Degree, more specifically from the sentence imposed by the County Court, Nassau County, that he 'be imprisoned in Sing Sing Prison * * * under an indeterminate sentence, the maximum of such imprisonment to be two years and the minimum one year'.

The defendant, a lawyer 30 years of age, was indicated on four counts of Grand Larceny, Second Degree, by reason of obtaining money by false pretenses in connection with certain settlements of lawsuits. He pleaded guilty to the one count involved herein.

The first question to be disposed of is whether the Appellate Division of the Supreme Court has the power to change, lower, or suspend the sentence in this case. However, at the very outset it is clear, without unnecessary argumentation, that the Appellate Division does have the power to reduce the maximum sentence; in fact, the District Attorney's brief with commendable candor states that 'there is no question but that the Appellate Division has the power to reduce the maximum term imposed upon the defendant by the County Court'.

In respect to the other phases of the Appellate Division's power to lessen or suspend the sentence in this case, an affirmative answer is found, among others, in People v. Zuckerman, 5 N.Y.2d 401, 403, 404 185 N.Y.S.2d 8, 9, 10, and in People v. Potskowski, 298 N.Y. 299, 303, 304, 83 N.E.2d 125, 127, 128.

In the Zuckerman case, the court said:

'Under section 543 of the Code of Criminal Procedure, implementing section 8 of article VI of the State Constitution, 'the Appellate Division has complete jurisdiction to reduce the sentence' (People v. Speiser, 277 N.Y. 342, 344, 14 N.E.2d 380, 381). The only express limitation upon the power is that the Appellate Division may not reduce a sentence imposed to a sentence 'lighter than the minimum penalty provided by law for (an) offense'. ([People v. Zuckerman] 6 A.D.2d 901, 177 N.Y.S.2d 555) No minimum is prescribed by section 1935 of the Penal Law, which prescribes the punishment for violations of section 1897. This power has frequently been exercised (e. g., People v. Hyde, 3 A.D.2d 854, 161 N.Y.S.2d 808, and cases cited). * * *

'* * * it may not be presumed that the sentencing court imposed a sentence to serve an indeterminate term as a punishment more severe than the definite terms of sentence in the absence of a finding of incorrigibility. But appellant had the right to have the Appellate Division review the refusal to suspend sentence or the execution of sentence (People v. Moran, 281 App.Div. 865, 119 N.Y.S.2d 441, affirmed 306 N.Y. 662, 116 N.E.2d 496). * * * Under the broad powers of the Appellate Division to reduce sentences is included the power to hold, in a proper case, that sentence or the execution of sentence should be suspended. We are not called upon to decide whether there should be a suspension in this instance, but whether the Appellate Division has power to do so where section 203 of the Correction Law has been applied. We think that the Appellate Division has that power, and that it unduly circumscribed its jurisdiction by the order appealed from. * * *

'The judgment appealed from is reversed upon the ground that the Appellate Division is empowered to modify the sentence imposed by the County Court, * * *.'

In the Potskowski case [298 N.Y. 299, 83 N.E.2d 127], the court said:

'Of course, the Appellate Division has jurisdiction to extend mercy to a defendant by a reduction of sentence within limits fixed by statute. Code Crim.Proc., § 543, subd. 1; People v. Speiser, 277 N.Y. 342, 14 N.E.2d 380. Assault in the second degree, to be sure, may be punished by imprisonment in a State prison, and, where such imprisonment is imposed, a minimum term of one year is mandatory. Penal Law § 2182, subd. 2. Even so, such punishment is not dictated by the applicable statute, which says: 'Assault in the second degree is punishable by imprisonment in a penitentiary or state prison for a term not exceeding five years, or by a fine of not more than one thousand dollars, or both' Penal Law, § 243. These words, it will be observed, prescribe no minimum term of sentence. Consequently a modification operating only as a mitigation of a sentence for assault in the second degree would be within the power of the Appellate Division. See People v. Speiser, supra.'

Thus, it is clear from a reading of these two Court of Appeals' cases and the quotations therefrom that the Appellate Division does have the power to diminish or suspend the sentence already imposed in this case.

The suggestion that the Appellate Division cannot suspend because the County Court did not have that right is met by Section 2188 of the Penal Law which states as follows:

'The court, judge, justice or magistrate authorized to impose sentence upon conviction may, except as otherwise provided in this section, (1) suspend sentence, or (2) may impose sentence and suspend the execution of the judgment.'

Anyway, this question has been put to rest by the Zuckerman decision.

The contention that Section 2183 of the Penal Law requires that incarceration, if imposed, must be for at least a year is not supported by the language of the section. It states: 'Where a person is convicted of a crime punishable by imprisonment for a term exceeding one year, and is sentenced to imprisonment for such a term, the imprisonment must be inflicted by confinement at hard labor in a state prison'. A reading of that section fails to establish the requirement of at least one year or imprisonment. It merely says that if the court imposes a term exceeding one year then the confinement must be in a State prison.

Section 1297 of the Penal Law, which is involved in this case, states that 'Grand larceny in the second...