People v. Warrelman
| Decision Date | 05 May 1964 |
| Citation | 249 N.Y.S.2d 220,42 Misc.2d 783 |
| Parties | The PEOPLE of the State of New York v. Frank R. WARRELMAN, Defendant. |
| Court | New York Supreme Court |
Frank R. Warrelman, pro se.
Frank D. O'Connor, Dist. Atty., Queens County (Lester D. Janoff, Asst. Dist. Atty., of counsel), for plaintiff.
Motion for 'remand for resentencing' denied. Defendant is serving time under a sentence imposed June 4, 1962 upon his conviction in the former County Court, Queens County, of Robbery, 2nd Degree, as a second felony offense. The theory underlying his motion is that a sentence awarded to and executed against him upon his prior conviction of Attempted Forgery, 3rd Degree (also in the former County Court, Queens County) was void because the court failed to appoint a time for pronouncing judgment when, on January 14, 1954, it accepted defendant's plea of guilty. According to defendant's interpretation of the matter, the omission of formal compliance with the statute entitles him to be resentenced (People ex rel. Vischi v. Martin, 8 N.Y.2d 63, 66, 201 N.Y.S.2d 753, 755, 168 N.E.2d 94, 95) although it is undisputed and indisputable that he actually was sentenced on February 26, 1954 and was incarcerated in execution of that judgment. I do not accept the validity of the proposition, upon which the success of this motion depends, that a postponement of sentence, without fixing a date therefor, rendered the sentence actually imposed void, there being no such inordinate delay as would have deprived the court of its jurisdiction.
The stenographic record of the proceedings had upon the occasion when defendant entered his guilty plea discloses that after the plea had been offered and accepted, defendant's counsel inquired whether the court was setting a date for sentence. An Assistant District Attorney answered 'You will be notified by the Probation Department' . The other records in the file together with pertinent endorsements thereon, reveal only that after the plea was taken, defendant was remanded for sentence, but no date for that purpose appears anywhere. The Probation Department's record bears a time stamp indicating that that department received defendant's case on the day when he entered his guilty plea. Another time stamp, on a Probation Officer's report, shows that an investigation was made and a report of the case was filed, for reference by the court (Code Crim.Proc. § 931), on February 19, 1954. As earlier noted, the actual sentence followed, within a week. Under the circumstances, the time consumed in the investigation and report were entirely reasonable. The same is true of the further delay of one week, in the pronouncement of judgment.
The judge who presided at the time of the plea and again, at the time of sentence, was County Judge Milton A. Wiltse of Jefferson County. In addition to the discharge of his duties in the county of his residence, a part of Judge Wiltse's time was occupied in traveling a considerable distance to assist in the administration of the business of the County Court, Queens County. A sensible regard for the practical necessities of the overall situation makes it self-evident that there was no unreasonable delay between the time of the plea and the sentence (Matter of Hogan v. Bohan, 305 N.Y. 110, 112-113, 111 N.E.2d 233, 234; People ex rel. Harty v. Fay, 10 N.Y.2d 374, 379, 223 N.Y.S.2d 468, 471, 179 N.E.2d 483, 485; People v. Newcombe, 18 A.D.2d 1087, 239 N.Y.S.2d 378; People v. Green, 40 Misc.2d 772, 244 N.Y.S.2d 292). Defendant has cited no authority supporting his view that the court's failure to fix a specific date for the rendition of judgment, of itself, invalidated the sentence later pronounced. The District Attorney acknowledges that he has found no authority on either side of the question, and the court's own efforts have been no more productive. Guidance, obviously, must be taken from fundamentals.
'There is a statutory scheme calling for indictment, trial, verdict, pronouncement of judgment and appeal. As to judgment, section 471 * * * provides, a court 'must appoint a time for pronouncing judgment', and that time, section 472 recites, must be ...
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