People v. Rubin S.

• Citation: 87 Misc.2d 951,386 N.Y.S.2d 536
• Parties: The PEOPLE of the State of New York v. RUBIN S., Defendant.
• Decision Date: 28 July 1976
• Court: New York Supreme Court

Page 536

386 N.Y.S.2d 536

87 Misc.2d 951

The PEOPLE of the State of New York v. RUBIN S., Defendant.

Supreme Court, Criminal Term, Queens County, Part VIII.

July 28, 1976.

Jacob W. Friedman, New York City, for defendant.

Nicholas Ferraro, Dist. Atty. (Dennis Lebwohl, Kew Gardens, of counsel), for People.

LEONARD L. FINZ, Justice.

The People move pursuant to section 440.40 C.P.L. to set aside a 'sentence rendered June 18, 1975 (Finz, J.) adjudicating the defendant a Youthful Offender and sentencing him to a term of probation for five years.'

The motion herein was undoubtedly inspired by the recent decision of the Appellate Division in this Department (People v. Santiago, 51 A.D.2d 1, 379 N.Y.S.2d 843) holding that section 720.10 of the Criminal Procedure Law, which governs the granting of youthful offender treatment in certain cases, was not violative of the New York State Constitution notwithstanding that said section removed automatically an otherwise eligible youth from youthful offender consideration by reason of an Indictment for an 'A' felony. In view of the expressions of that learned court in Santiago, and other cases (see People v. Burden, 53 A.D.2d 867, 385 N.Y.S.2d 347), it would be presumptuous for this court to assert a contrary view, and, indeed none will be advanced in this decision. What does follow, however, is based entirely upon a legal foundation which bears no relationship to the constitutional question addressed in Santiago.

The importance and novelty of the many questions raised on this motion invites the following discussion.

The defendant herein was adjudicated a youthful offender on March 6, 1975 (People v. Rubin S., 81 Misc.2d 305, 365 N.Y.S.2d 426) after pleading guilty to an 'A--III' felony. He was sentenced to five (5) years probation on June 18, 1975 (People v. Rubin S., 82 Misc.2d 884, 370 N.Y.S.2d 385). After imposition of the sentence and within the time provided by law, the District Attorney filed a notice of appeal from the judgment. It is conceded that no further action was taken by the District Attorney to perfect that appeal.

In this regard, section 670.4(a)(5) of the Rules of the Appellate Division of the Supreme Court, Second Department (as amended January 13, 1976) provide:

'Notwithstanding any of the provisions of this section or any of the other rules governing procedure in this court, An appeal must be argued or submitted within nine months after an appeal is taken, unless, for good cause shown, an order shall have been entered upon motion therefor, extending such time. (Emphasis supplied.) Absent such order, if it is not so argued or submitted, the appeal shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.' (22 N.Y.C.R.R. 670.4(a)(5).)

Section 670.4(b)(1) further provides:

'Insofar as they may be applicable, the provisions of subdivision (a) shall govern motions to dismiss a criminal cause.' (22 N.Y.C.R.R. 670.4(b)(1).)

In this connection,

'In the absence of proof to the contrary, there is a very strong presumption embodied in the maxim, 'omnia prasumuntur rite esse acta,' that public officers have property discharged the duties of their office. * * * the law in the absence of any circumstances or proof indicating the contrary, presumes not only that such public officers perform the duties of their office, but that acts within the sphere of their official duty were done regularly, legally, and reasonably, with honesty and good conscience in accordance with law.' (21 N.Y.Jur. Evidence, pp. 243, 244).

It is presumed therefore that the clerk has made the 'appropriate entry without the necessity of an order', and that the appeal therefore can be deemed to have been abandoned and dismissed 'for neglect to prosecute'.

HISTORY OF SECTION 440.40 OF THE CRIMINAL PROCEDURE LAW

Thereby laying to rest any pending appeal considerations, the court now addresses itself to the section under which the People move to determine its applicability to the instant matter. Section 440.40 is the successor of section 764--a of the Code of Criminal Procedure and was enacted by law in 1970, Chapter 996, Section 1, effective September 1, 1971. Examination of the report of the Temporary Commission on Revision of the Penal Law and Criminal Code reveals that there is no direct reference to section 440.40. While the report refers to 'post judgment motions--to vacate judgment and set aside sentence (Art. 440)' the only reference to this article is as follows:

'The two post-judgment motions encompass all contentions challenging an indictment or other accusatory instrument which now sail under the flags of coram nobis, motion for resentence, motion for a new trial by reason of newly discovered evidence, state habeas corpus and federal habeas corpus (§§ 440.10(1), 440.20(1).'

The commentary on this section by Richard G. Denzer (now a Judge of the Court of Claims) states: 'This section, which is new, expressly authorizes the trial court, upon motion of the People, to correct an illegal sentence imposed by it after service of the sentence has commenced.' (Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, C.P.L. 440.40, p. 348.)

ANALYSIS OF SECTION 440.40(1)

OF THE CRIMINAL PROCEDURE LAW

Having examined into the evolutionary development of Section 440.40 C.P.L. we proceed now to its application. In this context, Section 440.40(1) C.P.L. provides that not more than one (1) year after entry of a judgment the Court May upon motion of the People set aside the sentence upon the ground that it was invalid as a matter of law. Subdivision (2) provides: notwithstanding the previous subdivision the court Must deny the motion when the issue was previously determined on the merits 'upon an appeal from the judgment or sentence' unless there has been a 'retroactively effective change in the law controlling such issue'. Subdivision (3) states that notwithstanding subdivision (1) the court May deny the motion 'when the ground or issue raised thereupon was previously determined on the merits upon a prior motion or proceeding in a court of this state, other than an appeal from the judgment or sentence, unless since the time of such determination there has been a retroactively effective change in the law controlling such issue'.

It would appear therefore, that a denial of the motion is mandatory where there is a previous determination on the ground or issue upon appeal in the same case under consideration. It is clearly discretionary, according to subdivision (3), however, where the issue was previously determined in a manner other than an appeal from the instant judgment or upon a motion in the Federal Court. 'Despite such circumstance, however, the court, in the interests of justice and for good cause shown, May in its discretion grant the motion if it is otherwise meritorious.' (Emphasis added.)

JUDICIAL DISCRETION

The statutory discretion granted to the court under the language of Section 440.40(1) and (3) warrants a discussion relative to the proper exercise of judicial discretionary power. In this regard, a broad and widely accepted definition of discretion can be found in Bouvier's Dictionary as 'that part of the judicial function which decides questions arising in the trial of a cause, according to the particular circumstances of each case, and as to which the judgment of the court is uncontrolled by fixed rules of law. The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.' Conversely stated, 'Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court.' (Delno v. Market St. Ry. Co., 124 F.2d 965 (9 Cir. 1942); see also, Grant v. Corbitt, Fla., 95 So.2d 25; Peck v. Stone, 32 A.D.2d 506, 304 N.Y.S.2d 881; Murray v. Buell, 74 Wis. 14, 41 N.W. 1010 (1889)).

Hart and Sacks define certain other types of discretion as 'the power to choose between two or more courses of action each of which is thought of as permissible.' (H. Hart and A. Sacks, The Legal Process, p. 162 (tent. ed. 1958)).

In an essay by Kenneth Culp Davis on Case Law and Discretion (Administrative Law Text 99--100 (3d ed. 1972)) he stated:

'Law and discretion are not separated by a sharp line but by a zone, much as night and day are separated by dawn. Instead of the two categories of law and discretion, we could recognize five or fifty, as may be convenient. For present purposes, five seem convenient--those in which the tribunal's prevailing attitude is that precedents are (1) almost always binding, (2) always considered and usually binding, (3) usually considered but seldom binding, (4) occasionally considered but never binding, and (5) almost never considered. The first two categories fit what we usually call case law, the last two fit what we usually call discretion, and the third is the zone between law and discretion.'

Bearing, therefore, on the subject of discretion, one of the considerations herein is the fact that the People did not proceed diligently to prosecute the appeal, which was therefore dismissed.

DISTINCTION BETWEEN SENTENCE AND JUDGMENT

As earlier stated, the defendant was adjudged a youthful offender upon his prior plea of guilty to an 'A--III' felony. Thus, and in accordance with 720.20(3) C.P.L., the conviction was replaced by a Youthful Offender adjudication. The appeal taken therefrom as stated earlier was never prosecuted to a conclusion. The point to be stressed here is that the adjudication and the sentence involve Separate component parts of the judgment and are not synonymous. In further support of this, there is to be found a distinct...