People v. Leisen

Decision Date12 July 1967
Citation28 A.D.2d 926,282 N.Y.S.2d 307
PartiesThe PEOPLE, etc., Respondent, v. Edwin J. LEISEN, Appellant.
CourtNew York Supreme Court — Appellate Division

James J. McDonough, Mineola, (Jeffrey Holland, Mineola, of counsel) for appellant.

William Cahn, Dist. Atty., (Jules E. Orenstein, Great Neck, of counsel) for respondent.

Before BELDOCK, P.J., and CHRIST, BRENNAN, BENJAMIN and MUNDER, JJ.

MEMORANDUM BY THE COURT.

Judgment of the County Court, Nassau County, rendered October 7, 1966, convicting him, on his plea of guilty, of second degree assault with intent to commit sodomy, and sentencing him to imprisonment for one day to life, affirmed.

BELDOCK, P.J., and CHRIST, BRENNAN and BENJAMIN, JJ., concur.

MUNDER, Justice.

I dissent and vote to remit the matter for presentence hearing and resentence.

On April 27, 1965 appellant was indicted for sodomy in the first degree, carnal abuse as a felony, second-degree assault, and endangering the life, health and morals of his daughter Kathleen. On May 23, 1966, while represented by counsel, he withdrew his plea of not guilty to the indictment, and interposed a plea of guilty to a charge of second-degree assault with intent to commit sodomy, in satisfaction of the indictment.

Thereafter, by the court's direction, pursuant to section 2189--a of the Penal Law, a psychiatric examination of appellant was conducted in the manner prescribed by sections 659, 660, 661 and 662--e of the Criminal Code. A written report thereof was presented to the sentencing court, as was appellant's own psychiatric report, obtained through private resources.

However, appellant was not permitted to examine the contents of the court-appointed psychiatrist's report, nor was he permitted to put his own doctor on the witness stand to testify in his behalf. He was not given an opportunity directly to confront and cross-examine opposing witnesses; his counsel did not specifically request a hearing at which such cross examination would be possible.

On October 7, 1966 appellant was sentenced to imprisonment for an indeterminate term of one day to life (Penal Law, §§ 243, 2189--a).

Appellant argues that the procedure by which this sentence was imposed violates the 'due process' requirement of the Fourteenth Amendment. Specifically, he contends that, since he was not afforded the opportunity to controvert, by means of his own witnesses and other proofs, the conclusions of the psychiatric report prepared pursuant to section 2189--a of the Penal Law, his rights under the Sixth and Fourteenth Amendments were violated (citing Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 and United States ex rel. Gerchman v. Maroney, 3 Cir., 355 F.2d 302.

The Supreme Court, in Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 held that the 'due process' clause of the Fourteenth Amendment did not require that the sentencing court hold hearings, and give the convicted person the opportunity to participate therein, with regard to the determination of the sentence to be imposed; specifically involved was the right of the sentencing court to rely on a probation officer's report, and on similar extra-record data.

In Specht, supra, the Supreme Court held that the rule of the Williams case did not apply to commitment proceedings under the Colorado Sex Offenders Act (Colo.Rev.Stat.Ann., §§ 39--19--1 to 10 (1963)). Petitioner could not be sentenced to an indefinite term of from one day to life without notice and a full hearing. The court said (386 U.S. 605, at page 608, 87 S.Ct. at page 1211):

'We adhere to Williams * * * but we decline the invitation to extend it to this radically different situation. * * *

'The Sex Offenders Act does not make the commission of an enumerated crime the basis for sentencing. It makes one conviction the basis for commencing another proceeding under another Act to determine whether a person constitutes a threat of bodily harm to the public, or is an habitual offender and mentally ill. That is a new finding of fact * * * that was not an ingredient of the offense charged.'

In Maroney, supra, the Court of Appeals for the Third Circuit had dealt in a similar manner with the corresponding Pennsylvania statute, the Barr-Walker Act (Purdon's Penna.Stat.Ann., Title 19, §§ 1166--1174). The Third Circuit did not find Williams dispositive of the case before it, since (355 F.2d 302, at p. 312):

'The evidence necessary to establish an essentially independent element (i.e., that the petitioner, 'if at large, constitutes a threat of harm to members of the public' and 'that it would be to the best interests of justice' to impose an indefinite sentence) was * * * received here not to aid in any discretionary determination, but rather to arrive at a finding of fact after which a mandatory punishment followed in which the court had no discretion. This is entirely unlike a sentencing procedure * * *.'

Maroney was cited with approval by the Supreme Court in Specht. In both cases the lower courts had relied on Williams.

We are now confronted with the question of the impact of the Specht and Maroney decisions on New York's statutory provisions for the treatment of sex offenders (i.e., Laws of 1950, ch. 525). This comprehensive legislation made a new form of sentence, the indefinite one-day-to-life sentence, available to the sentencing court in the case of a person convicted of certain specific sex offenses; it also required that the court, before it could impose such a sentence, have before it a recent psychiatrist's report, based on a post-conviction examination of the defendant.

In my opinion, the New York statutes involved in this case are not only similar in purpose to the Colorado and Pennsylvania statutes struck down in Specht and Maroney, but are procedurally similar as well. These similarities are apparent not only on the face of the statutes, but also in the way they have been construed in their respective jurisdictions.

The Colorado statute declares that it was enacted '(f)or the better administration of justice and the more efficient punishment, treatment, and rehabilitation' of persons convicted of specified sex offenses (Colo.Rev.Stat.Ann., § 39--19--1). The Pennsylvania statute contains an almost identical declaration (Purdon's Penna.Stat.Ann., Title 19, § 1166).

In New York, the interim report to Governor Deway on the study of sex offenders served as the basis for the subsequent omnibus legislation. Recommendations III and IV in that report suggested that efficient and improved administration of justice and treatment of sex offenders would be facilitated by the measures proposed. The Governor's message to the Legislature (N.Y.Legis.Annual, 1950, pp. 334--336; 1950 McKinney's Session Laws of New York, pp. 358--360) repeated these contentions.

In sum, the three statutes are identical in purpose.

Section 39--19--1 of the Colorado statute provides that:

'* * * if the district court is of the opinion that any such person, if at large, constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill, the district court in lieu of the sentence now provided by law, for each such crime, may sentence such person to a state institution for an indeterminate term having a minimum of one day and a maximum of his natural life.'

The statute continues:

'39--19--2.--Requirements before sentencing.--(1) No person convicted of a crime punishable in the discretion of the district court, under the provisions of this article, with imprisonment in a state institution for an indeterminate term having a minimum of one day and a maximum of his natural life, shall be so sentenced until:

(2) A complete psychiatric examination shall have been made of him by the psychiatrists of the Colorado psychopathic hospital or by psychiatrists designated by the district court; and

(3) A complete written report thereof submitted to the district court. Such report shall contain all facts and findings, together with recommendations as to whether or not the person is treatable under the provisions of this article; whether or not the person should be committed to the Colorado state hospital or to the state home and training schools as mentally ill or mentally deficient. Such report shall also contain the psychiatrist's opinion as to whether or not the person could be adequately supervised on probation.'

The wording of the provisions of the Pennsylvania statute (Title 19, §§ 1166, 1167) is virtually the same.

In New York, the 1950 legislation added the following words to section 243 of the Penal Law:

'* * * provided, however, any person convicted of assault in the second degree for an assault upon another with intent to commit the felony of rape in the first degree, rape in the second degree, sodomy in the first degree, sodomy in the second degree or carnal abuse may be punished by imprisonment for an indeterminate term, the minimum of which shall be one day and the maximum of which shall be the duration of his natural life.'

Similar language was added to sections 483--a, 483--b, 690, 1944--a, and 2010 of the Penal Law, which set forth the penalties for other sex offenses. These changes in the law were co-ordinated by, and functionally related to, section 2189--a of the Penal Law, a wholly new provision added by the 1950 legislation. It declared that:

'No person convicted of a crime punishable in the discretion of the court with imprisonment for an indeterminate term, having a minimum of one day and a maximum of his natural life, shall be sentenced until a psychiatric examination shall have been made of him and a complete written report thereof shall have been Submitted to the court. Such examination shall be made in the manner prescribed by section six hundred fifty-nine, six hundred sixty, six hundred sixty-one and six hundred sixty-two-e of the code of criminal procedure. Such report shall include all facts and...

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2 cases
  • People v. Jiggetts
    • United States
    • New York Supreme Court — Appellate Division
    • 12 de julho de 1967
    ...hearing. This same argument was advanced and rejected in People v. Bailey, 28 A.D.2d 126, 282 N.Y.S.2d 303, and People v. Leisen, 28 A.D.2d 926, 282 N.Y.S.2d 307, decided herewith. Moreover, unlike the defendants in the Bailey and Leisen cases, the defendant at bar was sentenced for specifi......
  • People v. McCraw
    • United States
    • New York Supreme Court — Appellate Division
    • 4 de dezembro de 1967
    ...with the following memorandum: Because I cannot distinguish People v. Bailey, 28 A.D.2d 126, 282 N.Y.S.2d 303 and People v. Leisen, 28 A.D.2d 926, 282 N.Y.S.2d 307, where the psychiatric reports were not more precise than in the instant case, I feel bound by those decisions. However, I adhe......

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