People v. Vitale

• Decision Date: 10 October 1974
• Citation: 360 N.Y.S.2d 375,80 Misc.2d 36
• Parties: PEOPLE of the State of New York v. Joseph VITALE, Defendant.
• Court: New York County Court

Page 375

360 N.Y.S.2d 375

80 Misc.2d 36

PEOPLE of the State of New York v. Joseph VITALE, Defendant.

Nassau County Court, Special Term, Part I.

Oct. 10, 1974.

William Cahn, Dist. Atty., Mineola, for People.

Joseph Vitale, in pro. per.

RAYMOND L. WILKES, Judge.

The law commands that we always 'look to the essence of a thing, whether it be a point of doctrine, of practice, or of interpretation.' We see this pentimento with what borders on transparent clarity when we apply the solvent of reason to this application. The point is best made by the following excerpt from a recent opinion of the Hon. Hugh R. Jones, Judge of our Court of Appeals, in People v. Brooks, 34 N.Y.2d 475, 358 N.Y.S.2d 395, 315 N.E.2d 460, decided July 10, 1974, wherein he said 'There is no surer way to misread any document than to read it literally' (Guiseppi v. Walling, 2 Cir., 144 F.2d 608, 624); and '(o)f course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.' (Cabell v. Markham, 2 Cir., 148 F.2d 737, 739) 'This question cannot be answered by closing our eyes to everything except the naked words of the (statute). The notion that because the words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification.' (Mr. Justice Frankfurter dissenting in United States v. Monia, 317 U.S. 424, 431, 63 S.Ct. 409, 412, 87 L.Ed. 376.)' (italics supplied)

The defendant's present pro se application contends that the sentence heretofore imposed upon him is illegal and must be set aside pursuant to § 440.20(1) of the CPL. He was sentenced by this court on November 14, 1972 to an indeterminate term of seven years 'to be served concurrently with the present three year concurrent terms of fifteen, ten and five years, respectively, that you are now serving in the federal penitentiary pursuant to the sentences heretofore imposed upon you by Judge Rosling in the Eastern District Federal Court of New York on June 28th, 1972.'

The defendant now urges that he be resentenced to a conditional or an unconditional discharge in order that the same effect as a concurrent sentence be achieved. If not, he argues, 'the good spirits in which I agreed to plead guilty and in which you agreed to sentence me,' would be violated. He writes, 'Had I known that the State sentence, even concurrent though it is, would bring with it all these problems, I would never have plead guilty to the charges.' (sic)

The defendant's concurrent sentence was imposed pursuant to § 70.25 of the Penal Law which reads in part:

'. . . when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and the undischarged term or terms in such manner as the court directs at the time of sentencing. If the court does not specify the manner in which a sentence imposed by it is to run, the sentence shall run as follows:

(a) An indeterminate sentence shall run concurrently with all other terms . . .'

Of itself, the foregoing Section of the Penal Law places no constraint upon concurrent sentencing where a person has been previously sentenced and is serving a term imposed by a court not of this state. However, § 70.30 of the Penal Law reads in part that:

'An indeterminate sentence of imprisonment commences when the prisoner is received in an institution under the jurisdiction of the state department of correction.'

and it is upon such shoals that concurrent sentences in this state have now begun to founder.

§ 70.25 and § 70.30 obviously are devoid of reference to defendants who are incarcerated pursuant to sentences imposed by courts of other jurisdictions. In the event such persons were not subject to the long-since-customary concurrent sentences meted out to them, this defendant's sentence would, of course, be improper. Indeed, in a literal sense, his sentence could not commence until his release from federal prison and his arrival at 'an institution under the jurisdiction of the state department of correction.' As a matter of fact, if this Court had been prohibited from imposing a sentence concurrent with the defendant's federal imprisonment, it would have had no realistically viable alternative other than to impose a consecutive sentence of up to a possible maximum of seven years as indicated on page 8 of the sentencing Minutes.

For quite some time, the courts of this state have been interpreting the law on this subject somewhat vacuously, and the New York State Department of Correctional Services has until fairly recently been honoring their 'concurrent' dispositions. However, the arrival upon the scene of a new Commissioner and counsel has changed all that--old customs curtsy before great kings.

This Court takes judicial notice of the fact that the County Court of Nassau County has been sentencing federal prisoners to state terms to be served concurrently with their federal sentences ever since the Penal Law took effect in its present form in 1967. It is no top secret that many defendants over the years have been permitted to rely upon such disposition of their cases when deciding whether or not to cooperate with the prosecution, and penology-wise, concurrent sentences have generally been considered to be one of the fairest methods of disposing of many cases without the retributive need for consecutivity so frowned upon by our Appellate jurists and penologists alike. Conditional or unconditional discharges pursuant to Article 65 of the Penal Law are most unpalatable substitutes for concurrent sentences--they make judges unnecessarily vulnerable (particularly in a day and age when they are fair or for that matter foul game for all and sundry)--and in addition, they fail to fulfill the functions of concurrent sentences. To belabor the obvious, if New York State courts gave such discharges to prisoners serving federal terms, those prisoners would go free if their federal convictions were overturned whereas with concurrent sentences hanging over them, so to speak, if a federal sentence were overturned for any reason, the state sentence would still take full force and effect.

In this regard, we wish to call attention to the following colloquy which ensued on March 13, 1973 between my learned colleague, the Hon. Bernard Tomson, and Harold Schatz at the time of that defendant's Change of Plea. During the course of plea taking, Judge Tomson spelled out his reliance upon a Department of Correctional Services Memorandum which led to the imposition of that defendant's sentence concurrent with his then extant federal sentence. In his customarily thorough and incisive style, Judge Tomson painstakingly explained to the defendant the practical meaning of the sentence he was planning to impose:

'THE COURT: Have any promises been made to you as to sentence or punishment by the Court, the District Attorney, any Assistant District Attorney or your own attorney, other than the fact that you were told, and I am telling you now, that the sentence I intend to impose here Is an indeterminate term of five years in the state institution, to run concurrently with your present sentence, your present federal sentence, which I understand is ten years? (italics supplied)

'THE DEFENDANT: Yes, sir.

'THE COURT: Now, do you understand the implications of that?

'That would mean that if for some reason or other you were not required to serve the sentence in the Federal Court in excess of five years, or rather that if for some reason or other you served less than five years in the federal sentence, you would still be required to serve a term in a state penal institution. The length of the term that you would be required to serve in a state penal institution would depend on a number of factors, which I do not think I can go into at this point other than to tell you that if you serve--I gather from this memorandum that I have with respect to what the Department of Correction is doing, that if you serve five years or more in the federal penitentiary there is no problem about the state sentence. You would not serve any portion of it. But if you serve less than five years, then you would have to deal with the State Department of Correction. Do you understand that? (italics supplied)

'THE DEFENDANT: If the federal government were to parole me after three and one half years would I then have to go to do the time, the balance of the time at stake?

'THE COURT: I will read the memorandum that I have here. 'The Department of Correction is honoring sentences to be served concurrently with previously imposed and presently being served federal sentences.' (italics supplied)

'Listen closely. It is more important that you hear what I say.

'MR. CASTELLANO: Than what I say, sir.

'THE COURT: You can have all the time you wish to discuss it with your lawyer after I read this.

"A discussion with Manuel Murvia, Esq., chief counsel of the Department of Correction has revealed that there are Judges in New York County who are sentencing defendants to terms to run concurrent with federal sentences. The defendant receives credit as good time on the state sentence for the time he serves in federal prison on the federal sentence.' (italics supplied)

'And then there is this example given. 'Prior federal, zero to five. State is zero to four.'

'That is not unlike this. All you have to do is substitute zero to ten and zero to five.

"The individual serves...