People v. Zuckerman

Citation185 N.Y.S.2d 8,5 N.Y.2d 401
Parties, 157 N.E.2d 862 PEOPLE of The State of New York, Respondent, v. Abie ZUCKERMAN, Appellant.
Decision Date09 April 1959
CourtNew York Court of Appeals

Samuel W. Gilman, New York City, for appellant.

Edward S. Silver, Dist. Atty., Brooklyn (William I. Siegel, Brooklyn, of counsel), for respondent.

VAN VOORHIS, Judge.

Appellant pleaded guilty to a charge of attempted possession of a dangerous weapon as a felony under section 1897 of the Penal Law, McK.Consol.Laws, c. 40. A bizarre factual picture is presented in the circumstances leading to this man's arrest, culminating in his shooting on several occasions at the wall of the residence of another man who knew but refused to disclose the identity of a third man, by whom appellant believed himself to have been wronged. An indeterminate penitentiary sentence was imposed under section 203 of the Correction Law, McK.Consol.Laws, c. 43, carrying a maximum of three years. A prisoner may be released sooner by the Parole Commission subject to approval of the sentencing court. On appeal to the Appellate Division, the sole issue related to excessiveness of the sentence. The court majority did not consider whether the sentence was excessive, but affirmed on the ground that 'As a matter of law, this court is without power to change such a sentence (People v. Porfido, 279 App.Div. 1036, 112 N.Y.S.2d 110; People v. Baker, 280 App.Div. 899, 115 N.Y.S.2d 595; People v. Rivera, 5 A.D.2d 853, 171 N.Y.S.2d 285).' The sole question before us is whether the Appellate Division has power to review an indeterminate penitentiary sentence under section 203 of the Correction Law. Under section 543 of the Code of Criminal Procedure, implementing section 8 of article VI of the State Constitution, 'the Appellate Division has complete jursdiction to reduce the sentence' (People v. Speiser, 277 N.Y. 342, 344, 14 N.E.2d 380, 381). The only express limitation upon that power is that the Appellate Division may not reduce a sentence imposed to a sentence 'lighter than the minimum penalty provided by law for (an) offense'. (6 A.D.2d 901, 177 N.Y.S.2d 555) No minimum is prescribed by section 1935 of [157 N.E.2d 863] the Penal Law, which prescribes the punishment for violations of section 1897. This power has frequently been exercised (e.g., People v. Hyde, 3 A.D.2d 854, 161 N.Y.S.2d 808, and cases cited). The cases cited by the majority of the Appellate Division as holding that it lacks power to review this kind of a sentence were all decided on the authority of People v. Porfido, 279 App.Div. 1036, 112 N.Y.S.2d 110.

What was said in Porfido is correct, following People v. Thompson, 251 N.Y. 428, 167 N.E. 575, that it may not be presumed that the sentencing court imposed a sentence to serve an indeterminate term as a punishment more severe than the definite terms of sentence in the absence of a finding of incorrigibility. But appellant had the right to have the Appellate Division review the refusal to suspend sentence or the execution of sentence (People v. Moran, 281 App.Div. 865, 119 N.Y.S.2d 441, affirmed 306 N.Y. 662, 116 N.E.2d 496). One of the Justices at the Appellate Division, at least, considered that the sentence should be limited to the time already served, and, for aught that appears to the contrary, the majority may have agreed with him except that they considered that they lacked the power. In People v. Porfido (supra), no request was made of the sentencing court to suspend the sentence, nor was...

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22 cases
  • United States v. Mancusi
    • United States
    • U.S. District Court — Eastern District of New York
    • October 13, 1967
    ...* * *" the minimum sentence for attempted sale of narcotics was one to two and one-half years). See People v. Zuckerman, 5 N.Y.2d 401, 185 N.Y.S.2d 8, 157 N.E.2d 862 (1959) (defendant pled guilty; Appellate Division has broad discretionary power to reduce sentence or suspend execution). Cf.......
  • People v. Malcolm
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    • New York Supreme Court — Appellate Division
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  • People v. Corapi
    • United States
    • New York Supreme Court — Appellate Term
    • January 30, 1964
    ...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 ).' (People v. Silver, 10 A.D.2d 274, 275, 199 N.Y.S.2d 254, 255, 256, see also, People v. Speiser, 277 N.Y. 342, 14 N.E.2......
  • Department of Housing Preservation and Development of City of New York v. Park Properties Development Associates
    • United States
    • New York City Court
    • March 13, 1992
    ...broad powers to reduce sentences may hold, in a proper case, that execution of sentence be suspended (People v. Zuckerman, 5 NY2d 401, 403-404 [185 N.Y.S.2d 8, 9, 157 N.E.2d 862 (1959) ]; see, People v. Speiser, 277 NY 342 [14 N.E.2d 380 (1938) ]. To the extent that Woodin held that the cou......
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