People v. Parker

• Decision Date: 27 September 1979
• Citation: 71 A.D.2d 986,420 N.Y.S.2d 379
• Parties: The PEOPLE of the State of New York, Respondent, v. James O. PARKER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 379

420 N.Y.S.2d 379

71 A.D.2d 986

The PEOPLE of the State of New York, Respondent, v. James O. PARKER, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Sept. 27, 1979.

R. H. Jensen, New York City, for respondent.

M. A. Kneeland, New York City, for defendant-appellant.

Before KUPFERMAN, J. P., and BIRNS, FEIN, BLOOM and LUPIANO, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County, rendered March 20, 1978, convicting defendant, after jury trial, of criminal possession of a forged instrument in the second degree, criminal possession of a weapon in the third degree, and criminally using drug paraphernalia in the second degree and sentencing him, as a second felony offender, to concurrent indeterminate terms of from two to four years on each count, modified, on the law, to the extent of vacating the sentence of two to four years on the count of criminally using drug paraphernalia in the second degree and imposing instead a concurrent sentence of one year, and, as so modified, affirmed. The case is remitted to the Supreme Court, New York County for further proceedings pursuant to CPL 460.50 (subd. 5).

The People concede, and we agree, that defendant was improperly sentenced to two to four years on his misdemeanor conviction of criminally using drug paraphernalia in the second degree (Penal Law § 220.50). The maximum permissible sentence is one year for this Class A misdemeanor conviction (Penal Law § 70.15).

All concur except BLOOM, J., who concurs in a separate memorandum, as follows:

In connection with the second count of the indictment alleging criminal possession of a forged instrument in the second degree, the trial court was required to and did instruct the jury on the question of intent. In so doing, the court charged, in part, as follows:

"On the question of intent, you Must infer that a person intends that which is natural and necessary and proper consequences (sic) of the act by him and, unless the act was done under circumstances to preclude the existence of such intent, you have the right to find from the results produced an intention to effect it. That basically is what the term intent means" (Emphasis supplied).

Although my colleagues are of the opinion that the mandatory nature of this portion of the charge was sufficiently softened by the remainder of the charge on intent so as to bring it within constitutional standards, some comment on the effect of Sandstrom v. Montana, --- U.S. ----, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) is warranted.

Sandstrom involved an indictment charging deliberate homicide. The...