People v. Silver

• Decision Date: 12 April 1960
• Citation: 199 N.Y.S.2d 254,10 A.D.2d 274
• Parties: PEOPLE of the State of New York, Respondent, v. Leon SILVER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 254

199 N.Y.S.2d 254

10 A.D.2d 274

PEOPLE of the State of New York, Respondent, v. Leon SILVER, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

April 12, 1960.

Philip Segal, New York City, of counsel (Samuel Segal, New York City, attorney), for defendant-appellant.

Arthur C. Muhlstock, New York City, of counsel (Richard G. Denzer, New York City, on the brief; Frank S. Hogan, New York City, Dist. Atty., attorney), for respondent.

Before BOTEIN, P. J., and BREITEL, FRANK, VALENTE and McNALLY, JJ.

VALENTE, Justice.

Appellant was convicted in the Court of General Sessions of the crime of grand larceny, first degree, arising from his participation--with an unapprehended confederate--in the theft of $1,800 worth of furs, taken from a showroom of a furrier on the eighth floor of a building on West 30th Street about 12:00 noon on a weekday. He was sentenced to the New York City Penitentiary for a period of one year.

Although the record establishes appellant's guilt beyond a reasonable doubt and no prejudical error was committed requiring a new trial, a consideration of the entire case, as well as the pre-sentence investigation report prepared by the Probation Department demonstrates that, while legally permissible (Penal Law, § 2182, subd. 1), the sentence was inappropriate and inapplicable. Under the provisions of section 543 of the Code of Criminal Procedure, this Court may modify the judgment imposing the sentence; and the power to reduce sentences includes the power to find that a sentence or the execution of sentence should be suspended (People v. Zuckerman, 5 N.Y.2d 401, 185 N.Y.S.2d 8).

Appellant, for all of the 47 years of his life, has given every external evidence of personal and social adjustment in childhood, in adolescence and in adulthood. He has a stable and happy marital relationship and is the father of a 16-year-old son presently in high school. A hat blocker by trade and a member of the Millinery Hat Blockers Union, he was for 21 years steadily employed by one business concern. After that firm went out of business in 1953, appellant, while allegedly in poor health, was for a number of years regularly self-employed as a peddler. He was considered a responsible and respectable family man in his community until he became involved in his present difficulty.

Sentencing is one of the most difficult problems that confront a judge of a criminal court. After guilt has been established or acknowledged, when to be severe, when to be merciful, when to impose no sentence at all can cause many uneasy moments for the conscientious judge.

Basically, the primary object of our penal philosophy must be the protection and security of our community. For reasons of simple safety, the habitual criminal with his anti-social orientation and the incorrigible thug who resorts to violence to achieve his criminal designs must be uprooted and separated from the community. As a consequence, not only is protection afforded society but, rightly or wrongly, the law assumes that prompt and substantial punishment in such cases will deter others similarly inclined.

However, all offenders are not habitual criminals. Great care should therefore be exercised in imposing judgment for the very obvious reason that vast differences exist among individual offenders and their personal capacity for rehabilitation.

The prime aim of socialized justice, and inherent in its administration in our criminal courts today, is a dispassionate and conscientious evaluation of the unique aspects of the convicted offender's total personality, his intelligence, his character structure, his demonstrated ability to conform, his capacity to accept our social disciplines and limits, and his over-all stability. Such an inventory of his assets and liabilities is indispensable to a judicial determination in selected cases of whether accidental or situational offenders with promising potential can be aided to readjust to a normal life in the community without the disruptive, and sometimes destructive, effects of imprisonment.

In sum, a sentence must not only encompass the community's condemnation of the defendant's misconduct, but must also evaluate the possibilities of the rehabilitation of the defendant as a useful and responsible member of the community. The point need not be labored that it is, generally, the community's gain whenever a family can be kept together as an integrated and emotionally satisfying unit, with the head of the family meeting his responsibilities to it instead of unnecessarily marking time in jail.

It is much easier for the sentencing judge to send to jail for the maximum period the person convicted of a crime than it is to place him on probation or to defer sentence. ¹ When to exercise this latter discretion, poses the greatest problem.

When a judge, after painstaking evaluation, concludes that there is a substantial basis for rehabilitation of a defendant, and places him on probation, the judge has made an individualized determination. True, probation involves a calculated risk. If the treatment is successful, the incident is closed. On the...