People v. McDaniel

• Decision Date: 08 November 1974
• Citation: 79 Misc.2d 848,361 N.Y.S.2d 555
• Parties: The PEOPLE of the State of New York v. Roscoe McDANIEL, Defendant.
• Court: New York Supreme Court

Page 555

361 N.Y.S.2d 555

79 Misc.2d 848

The PEOPLE of the State of New York v. Roscoe McDANIEL, Defendant.

Supreme Court, Trial Term, New York County, Part 30.

Nov. 8, 1974.

Petitioner, pro se.

Richard Kuh, Dist. Atty. (Carl Kusic, New York City, of counsel), for the People.

GEORGE F. ROBERTS, Judge:

This defendant was convicted of the crime of possession of a loaded firearm as a felony, after trial upon an indictment dated September 25, 1967, charging murder in the second degree and other includible crimes, and was thereupon sentenced, as a fourth felony offender, to a term of not less than fifteen years nor more than his natural life. The conviction and judgment were subsequently affirmed on appeal and an application to vacate the same was denied, the Appellate Division declining to review that determination.

At this stage of the proceeding, the defendant now moves to vacate such judgment, alleging:

1) that he was indicted, tried, and sentenced subsequent to the enactment of the present Penal Law, which repealed section 1942 of our former Penal Law providing for such multiple offender sentence; and

2) that his life sentence, predicated on possession of a weapon, which the jury impliedly found to have been used in self-defense, was grossly disproportionate to the crime committed and in conflict with the prohibition against the cruel and unusual punishment clause embodied in the Eighth Amendment to the Federal Constitution.

Section 5.05(3) of our present Penal Law, insofar as it applies to this case, specifically provides:

'The provisions of this chapter do not apply or govern the construction of and punishment for any offense committed prior to the effective date of this chapter.' (September 1, 1967).

And the Practice Commentary (McKinney's Consolidated Laws of New York, Penal Law, Book 39, p. 8, Richard C. Denzer and Peter McQuillan) substantially restates that proposition. Moreover, the courts have consistently and repeatedly reiterated that position (People v. Millard, 32 A.D.2d 676, 299 N.Y.S.2d 735 (3d Dept. 1969); People v. Peoples, 32 A.D.2d 1041, 303 N.Y.S.2d 796, affd. 27 N.Y.2d 785, 315 N.Y.S.2d 851 (1970); People ex rel. Caruth v. La Vallee, 37 A.D.2d 661, 323 N.Y.S.2d 18 (3d Dept. 1971)). There is no constitutional impediment to making a new penal law only prospective in application (People v. Millard, supra). Where there is a change in the law abolishing a crime or altering its definition, the state may prefer to retain the right to prosecute for the act previously committed in deliberate defiance of the law as it then existed (People v. Baird, 48 Misc.2d 410, 265 N.Y.S.2d 264 (1965)).

The cases cited by the defendant (People v. Monteleone, 30 A.D.2d 158, 290 N.Y.S.2d 823, and People v. Curro, 26 N.Y.2d 669, 308 N.Y.S.2d 394, 256 N.E.2d 547, dealing with the repeal of Article 3--A of the Correction Law providing for the former indefinite three-year penitentiary sentence imposed for a misdemeanor, and People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134 N.E.2d 197, removing the acts of children under fifteen years of age from the category of crimes) are inapposite to the case at bar, since in the former cases the legislative purpose to eliminate the penitentiary sentence was absolutely clear, while in the latter there was no legislative prohibition against and sound social reasons for applying the new statute retroactively. As a matter of fact in the Oliver case, supra, the court itself specifically makes the distinction that where at the outset the retroactive application of the statute is clearly and specifically prohibited by legislation, as it does in this case...