APPEAL by the defendant, Samuel Rosen, from a judgment of the Court of General Sessions of the Peace in and for the
county of New York, rendered against the defendant on the 25th day of May, 1910, convicting him of the crime of burglary and also from the indictment.
John P. Judge, for the appellant.
Robert S. Johnstone, Assistant District Attorney, for the respondent.
INGRAHAM, P. J.:
The defendant served a notice of appeal 'from the indictment and the judgment of sentencing me to a term of 30 years in States Prison for a crime of burglary, which was rendered against me on May 25th, 1910. * * * That the defendant hereby appeals from each and every part of the said indictment and sentence.' No case on appeal seems to have been made and settled, but the record upon which the appeal was presented contains the indictment in the Court of General Sessions of the Peace whereby the appellant and one Kramer were indicted for the crime of burglary in the first degree. It appears from the indorsements on this indictment that on May 20, 1910, the appellant pleaded guilty to burglary in the first degree and on May 25, 1910, he was sentenced to thirty years in the State prison and adjudged an habitual criminal, and under that indorsement appears the initials of a judge of the Court of General Sessions. There are further indorsements on the indictment that the defendant was aged twenty-one and as to his nativity, occupation, etc., and then the following: 'before convicted, 1908 General Sessions, Elmira Ref. G. L.,' the letters 'G. L.' presumably relating to grand larceny. There is then printed an extract from the minutes of the court which is in substance a judgment. It recites that at a Court of General Sessions of the Peace of the city and county of New York, on the 25th of May, 1910, present Honorable JAMES T. MALONE, Judge of the Court of General Sessions, Justice, wherein 'it is ordered and adjudged by the court that the said Samuel Rosen for the felony aforesaid, whereof he is convicted, be imprisoned in the State prison, at hard labor, for the term of thirty years, and the defendant is hereby adjudged an habitual criminal.' There is no other record of the conviction
or plea before us. We must assume that these indorsements are correct; that the defendant plead guilty to this indictment; that he was sentenced to the State prison for thirty years, and that the appellant had been before convicted in 1908 at the Court of General Sessions of grand larceny, had been sentenced to the Elmira Reformatory. It is claimed that this judgment was erroneous, in that the defendant was not indicted as a second offender under the Code of Criminal Procedure, and that not having been indicted as having been before convicted of a felony he could only be sentenced under section 2189 of the Penal Law for an indeterminate sentence. In disposing of this appeal we must assume that the defendant was indicted for the crime of burglary in the first degree with no statement in the indictment that he had been before convicted of a felony; that he plead guilty to that indictment, and that it was established after the plea and before judgment that the defendant had been before convicted of a felony and sentenced to the Elmira Reformatory, and the court thereupon sentenced the defendant to thirty years in State prison and adjudged him to be an habitual criminal.
Article 90 of the Penal Law provides for the punishment to be inflicted upon habitual criminals. Section 1020 provides: 'Where a person is hereafter convicted of a felony, who has been, before that conviction, convicted in this State, of any other crime, * * * he may be adjudged by the court, in addition to any other punishment inflicted upon him, to be an habitual criminal.' And section 1021 provides for the supervision of the person of an habitual criminal. These same provisions are contained in the Code of Criminal Procedure, sections 510, 511, 512, 513 and 514, which provide for the supervision and punishment of a person who has been so adjudged. There is nothing in either of these sections as to the method by which it is to be determined whether or not a person so convicted has been before convicted, but these provisions seem to have been taken from the Habitual Criminal Act (Laws of 1873, chap. 357), and the sections of the Code of Criminal Procedure superseded that act. I think we must presume from this record that the court below determined upon sufficient evidence that this defendant had been convicted of a felony
prior to his indictment and conviction of the offense of burglary and that he came within these provisions of the Code of Criminal Procedure and the Penal Law as a person convicted of a felony who had been before that conviction convicted in this State of a crime. There is nothing in the sections of the Code of Criminal Procedure or of the Penal Law referred to which requires that this prior conviction should be charged in the indictment. What is required is that after a conviction the court should determine, upon competent legal evidence, that the person convicted of the crime had been before convicted of a crime and then the court was required to adjudge him an habitual criminal, and a person so convicted thereby became subject to certain supervision by magistrates and others and to summary arrest in certain specified cases. These provisions having been a part of the Penal Code (§ § 690, 691) and Code of Criminal Procedure ( supra), section 1941 of the Penal Law (formerly Penal Code, § 688) providing for the conviction and punishment of a second offender was enacted. It provides that 'a person, who, after having been convicted within this State, of a felony, or an attempt to commit a felony, or of petit larceny, or, under the laws of any other State, government, or country, of a crime which, if committed within this State, would be a felony, commits any crime, within this State, is punishable upon conviction of such second offense, as follows:' and then provides the punishment to which a person thus convicted as a second offender is subject. This provision, it seems to me, is entirely distinct from the provisions of section 1020 of the Penal Law or section 510 of the Code of Criminal Procedure. One provides for the indictment and trial of a person as a second offender, the other for a judgment of the court after the trial of a person indicted and convicted as a first offender but who was subsequently proved to the court to have been before convicted. These two provisions being in existence, by chapter 425 of the Laws of 1901 (adding to Penal Code, § 687a), the provision in relation to indeterminate sentences to State prison was adopted. (Penal Law, § 2189.) It is provided by the Penal Law: 'A person never before convicted of a crime punishable by imprisonment in a State prison, who is convicted in any court in this State of a felony
other than murder first or second degree, and sentenced to a State prison, shall be sentenced thereto under an indeterminate sentence, the minimum of which shall not be less than one year, or in case a minimum is fixed by law, not less than such minimum; otherwise, the minimum of such sentence shall not be more than one-half the longest period and the maximum shall not be more than the longest period fixed by law for which the crime is punishable of which the offender is convicted.' The defendant would have been subject to this provision but for the fact that the court had adjudged that he had been before convicted of a crime punishable by imprisonment in a State prison. There is nothing in this provision that limits its application to a person convicted as a second offender, and, therefore, in determining the sentence the judge was to ascertain whether or not the person convicted had or had not been before convicted of a crime punishable by imprisonment in a State prison. If he determined that the prisoner had been before convicted of such a crime the provision as to an indeterminate sentence did not apply and the other sections of the Penal Law prescribing the sentence for persons convicted of the crime were applicable. The crime of burglary in the first degree is punishable by imprisonment for not less than ten years (Penal Law, § 407), and the defendant having been before convicted of a crime punishable by imprisonment in a prison was subject to imprisonment for thirty years in a State prison, the sentence prescribed by the court below. (See Penal Law, § 2191.) In the case of a person who had committed a crime he could be indicted either as a first or second offender. If indicted as a second offender there must be proof before the jury of the first conviction (See Code Crim. Proc. § 514a) and then the provisions of the Penal Law fixing the sentence of a second ...