People v. Smith
| Decision Date | 11 October 1965 |
| Citation | 263 N.Y.S.2d 480,24 A.D.2d 760 |
| Parties | The PEOPLE of the State of New York, Respondent, v. George G. SMITH, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Liebman, Eulau & Robinson, New York City, for appellant; Jay Goldberg, New York City, of counsel.
William Cahn, Dist. Atty., Mineola, for the People; Jules E. Orenstein, New York City, of counsel.
Before BELDOCK, P. J., and UGHETTA, BRENNAN, HILL and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant 'from so much of a judgment' of the County Court, Nassau County, rendered May 4, 1965 on his plea of guilty, convicting him, inter alia, of a violation of section 1751-a of the Penal Law (), as sentenced him to a term of one year in the Nassau County jail upon the ground that it was excessive.
Judgment affirmed.
The appellant and a co-defendant were indicted by a 71 count indictment which charged them with feloniously selling a narcotic drug (counts 1-14); selling a narcotic drug in violation of section 1751-a of the Penal Law (counts 15-28); selling a drug in violation of subdivision 3, par. m of section 6804 of the Education Law (counts 29-49); selling a drug in violation of subdivision 3, par. k of section 6804 of the Education Law (counts 50-70); and failure to keep records in violation of section 1751-a of the Penal Law (count 71).
Count 13 accused the defendants of feloniously selling a narcotic drug in that they peddled and sold 'a quantity of a narcotic drug, to wit, a quantity of Robitussin AC with Codeine in quantities of more than four fluid ounces to one person at one time, contrary to the Public Health Law'. During trial, appellant pled guilty to the attempted felonious selling of a narcotic drug under count 13, in satisfaction of the indictment. The co-defendant made a similar plea to count 12, which was similar to count 13. At sentencing both defendants amended their guilty pleas to include pleas of guilty to the 71st count, which charged them with the misdemeanor of violation of section 1751-a of the Penal Law in that they, 'between, on or about the 1st day of April, 1964 and on or about the 11th day of June, 1964, failed to keep records of all narcotic drugs received and disposed of by them, to wit, medicinal preparations containing Codeine were sold and all sales were not recorded as required by the Public Health Law, Section 3333, subdivision 3'.
The court sentenced the appellant on the felony count, court 13, to a term of 2 1/2 to 5 years and suspended the execution of the sentence. On the misdemeanor count, count 71, the court sentenced the appellant to a term of one year in the Nassau County jail. The co-defendant received similar sentences on counts 12 and 71.
The appeal by the appellant is from so much of the judgment convicting him of count 71 as sentenced him to a term of one year in the Nassau County jail. He contends that said sentence is excessive. The appeal is based on his contentions that: (1) the sentence on the misdemeanor count was imposed on the assaumption, without any warrant in the record, that he had committed other violations of law not covered by the counts to which he had pleaded guilty; (2) as a matter of discretion, the sentence was excessive.
When due consideration is given to the nature of the crimes involved, the necessity for protecting...
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People v. Felix
...because the defendant in pleading guilty to some counts of the indictment did not plead guilty to other counts" (People v. Smith, 24 A.D.2d 760, 761, 263 N.Y.S.2d 480 Penal Law § 70.02(5) involves no mandatory presumption and does not purport to allocate either a burden of going forward or ......