People v. Riforgiato

• Citation: 19 A.D.2d 132,241 N.Y.S.2d 239
• Parties: The PEOPLE of the State of New York, Appellant, v. Anthony RIFORGIATO, Respondent. Application of Carman F. BALL, Petitioner, v. The Hon. William B. LAWLESS, Hon. Gilbert H. King, Anthony Riforgiato and John W. Condon, Jr., Defendants.
• Decision Date: 01 July 1963
• Court: New York Supreme Court — Appellate Division

Page 239

241 N.Y.S.2d 239

19 A.D.2d 132

The PEOPLE of the State of New York, Appellant, v. Anthony RIFORGIATO, Respondent.

Application of Carman F. BALL, Petitioner, v. The Hon. William B. LAWLESS, Hon. Gilbert H. King, Anthony

Riforgiato and John W. Condon, Jr., Defendants.

Supreme Court, Appellate Division, Fourth Department.

Argued April 4, 1963.

Decided July 1, 1963.

Carman F. Ball, Buffalo, Leonard F. Walentynowicz, Buffalo, of counsel, for petitioner-appellant.

Condon, Klocke, Ange & O'Donnell, John W. Condon, Jr., and Grace Marie Ange, Buffalo, for defendant-respondent.

Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HALPERN, and HENRY, JJ.

PER CURIAM.

Special Term made an order vacating a judgment of conviction entered on November 27, 1929 and directed resentence of respondent. The People appealed from that order but being uncertain of such right to appeal also commenced a proceeding in the nature of prohibition pursuant to the provisions of article 78 of the Civil Practice Act. The order was appealable as a matter of right. Respondent's reliance upon People v. Sidoti, 1 A.D.2d 232, 149 N.Y.S.2d 371, is misplaced. The holding therein to the contrary was expressly overruled in People v. Waterman, 11 A.D.2d 622, 623, 200 N.Y.S.2d 103, 104. Furthermore, it was unnecessary for the District Attorney to resort to an article 78 proceeding to review the order of Special Term. That was a procedural device born of necessity. (Cf. Matter of Hogan v. Court of General Sessions of New York County, 296 N.Y. 1, 68 N.E.2d 849; Matter of Lyons v. Ward, 272 App.Div. 120, 69 N.Y.S.2d 715, affd. Lyons v. Fisher, 297 N.Y. 617, 75 N.E.2d 630, affd. sub. nom. Paterno v. Lyons, 334 U.S. 314, 68 S.Ct. 1044, 92 L.Ed. 1409.)

Following these decisions the Legislature, pursuant to recommendation of the Judicial Council (14th Ann.Rep., 1948, p. 25), amended (L. 1947, ch. 706) sections 517, 518 and 519 of the Code of Criminal Procedure to permit an appeal to be taken from an order granting or denying a motion to vacate a judgment of conviction. Subdivision 4 of section 518 authorizes an appeal by the People from the order made herein. (Cf. People v. Waterman, supra.)

Turning to the issue presented. In October, 1929 a grand jury returned a short form indictment accusing respondent and another of grand larceny, first degree, contrary to sections 1290 and 1294 of the Penal Law. Respondent entered a plea of not guilty and presumably pursuant to demand the court ordered the prosecutor to furnish a bill of particulars. This was done and the bill alleges that on September 26, 1929 respondent and the co-defendant 'at the city of Buffalo, in this county, stole $39.75' from a named party. Thereafter, respondent changed his plea to guilty and on November 22, 1929 was sentenced to Elmira Reformatory.

In 1952 following indictment and trial respondent was convicted of certain felonies and by reason of the 1929 conviction was sentenced as a second offender. In this proceeding respondent moved to vacate the 1952 judgment in so far as it imposed sentence as a second felony offender. It was his contention that the crime set forth in the 1929 indictment and bill of particulars was the misdemeanor of petit larceny and not the crime of grand larceny. This was so, respondent argued, because indictment and bill read together did not charge that the sum of money was taken from the person of the victim and such was an essential element of proof to establish the crimes of either grand larceny, first or second degrees (Penal Law, § 1294, subd. 1; § 1296, subd. 2.) Absent these essential elements the crime, respondent contended, could only be petit larceny.

Special Term in vacating the 1929 judgment of conviction relied upon People v. Englese, 7 N.Y.2d 83, 195 N.Y.S.2d 641, 163 N.E.2d 869. This was error as that decision is distinguishable and not here controlling. Englese is only authority for the principle that relief is available if a long form indictment fails to state all the essential elements of the crime. This is in accord with well established legal principles. If such form is used there must be compliance with section 275 of the Code of Criminal Procedure which required 'A plain and concise statement of the act constituting the crime, without unnecessary repetition.' The applicable rule was enunciated in People v. Albow, 140 N.Y. 130, 134, 35 N.E. 438, 439: 'The settled rule of criminal pleadings requires that all the elements which enter into the definition of an offense must be stated in the indictment' or the pleading is fatally defective.

Similarly, in People v. Oliver, 3 N.Y.2d 684, 171 N.Y.S.2d 811, 148 N.E.2d 874, defendant had been convicted of burglary, first degree. The count of the long form indictment omitted the words 'in the night time'--an essential element of the crime (Penal Law § 402). In reversing the judgment of conviction it was said (p. 686 of 3 N.Y.2d, p. 812 of 171 N.Y.S.2d, p. 874 of 148 N.E.2d 874): 'The indictment, being in the long form, is defective insofar as it charges burglary in the first degree by omitting the essential allegation that it occurred in the nighttime (Penal Law, Consol.Laws, c. 40, § 402, subd. 4), and, being in the long form, it could not be amended nor the deficiency supplied by a bill of particulars or ignored (People v. Ercole, 308 N.Y. 425, 126 N.E.2d 543).'

These are the legal principles implemented in People v. Englese, supra. The court examined the long form indictment and found it charged only a misdemeanor because there was missing therefrom an allegation of an essential element to make the crime a felony.

The procedure as to a simplified indictment with which we are here concerned is entirely different. All that is required in the first instance is the accusation of the commission of a named crime without specifying time, date, place or manner of commission thereof (Code Crim.Proc. §§ 295-b, 295-c and 295-d). The granting of a bill of particulars is mandatory (§ 295-g) but section 295-h (subd. 2) only requires that the bill contain 'A statement, in ordinary language, without stating items of evidence or necessarily setting forth all the elements of the crime, of such particulars as may be necessary to give the defendant and the court reasonable information as to the nature and character of the crime charged.' (Emphasis supplied.) See also suggested form of bills of particular as set forth in section 295-i. Lastly, section 295-f states that such 'An indictment may be supported by proof that the defendant committed any of the acts * * * forbidden by the statute defining the crime charged.'

After the new procedure for simplified indictments was enacted (L.1929, ch. 176) it was passed upon in People v. Bogdanoff, 254 N.Y. 16, 171 N.E. 890, 69 A.L.R. 1378. In sustaining the sufficiency of the indictment and the constitutionality of the statute it was said (p. 27 of 254 N.Y., p. 894 of 171 N.E.) that the defendants 'point to no substantial right, guaranteed to them by the Constitution, which has been prejudiced by failure to state in the indictment all the essential elements of the crime charged.' See also People v. Williams, 7 A.D.2d 826, 180 N.Y.S.2d 955. We conclude that the indictment was valid and conferred jurisdiction upon the court. The bill of particulars was not required to give all essential elements of the crime. Defendant pleaded guilty and failed to move in arrest of judgment. (Code Crim.Proc. § 467.) There is no ground for finding that defendant was deprived of any constitutional right.

The order entered January 18, 1963 should be reversed and the motion denied. The application for an order in the nature of prohibition should be denied.

Order entered January 18, 1963, unanimously reversed and motion denied. Application for order in the nature of prohibition denied without costs.

HALPERN, Justice (concurring).

I concur in the result reached in the Per Curiam opinion although I do not concur in all that is said in the opinion.

I agree that People v. Englese, 7 N.Y.2d 83, 195 N.Y.S.2d 641, 163 N.E.2d 869, upon which Special Term relied, is 'distinguishable and not here controlling' but my reasons are somewhat different from those given in the per curiam opinion. In the Englese case, the defendant had been indicted for 'the crime of carrying a dangerous weapon, as a Felony Offense'. The District Attorney agreed that the word 'felony' was a mistake and that the word 'misdemeanor' should have been used in the indictment instead (District Attorney's Brief in the Court of Appeals, p. 8). Accordingly, when the defendant moved to vacate the judgment of conviction entered upon his plea of guilty to the felony, the District Attorney did not raise any objection to the vacating of the judgment nor did he contend that a motion to vacate or coram nobis would not lie under the circumstances and, of course, the District Attorney took no appeal from the portion of the order vacating the conviction. The case reached the Appellate Division and Court of Appeals only on the defendant's appeal (8 A.D.2d 744, 187 N.Y.S.2d 681, rev'd. 7 N.Y.2d 83, 195 N.Y.S.2d 641, 163 N.E.2d 869). The District Attorney had argued in the County Court that the indictment should be deemed to be amended by changing the word 'felony' to 'misdemeanor' and that the defendant's plea of guilty to the felony should stand as a plea of guilty to the misdemeanor. The County Court agreed with the ...