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Florance v. Donovan

Supreme Court of New York, Appellate Division

December 22, 1953

In the Matter of HAROLD FLORANCE, Appellant,
v.
EDWARD J. DONOVAN et al., as Commissioners of Correction of the State of New York, Respondents.

Page 154

APPEAL from an order of the Supreme Court at Special Term (BOOKSTEIN, J.), entered February 4, 1953, in Albany County, which dismissed a motion by petitioner for an order pursuant to article 78 of the Civil Practice Act to review a determination of respondents that petitioner was subject to the provisions of section 219 of the Correction Law. Petitioner was convicted in the County Court of Chemung County on June 9, 1942, and was paroled on May 10, 1944.

COUNSEL

James D. Benson for appellant.

Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown, Herman N. Harcourt and J. Bruce MacDonald of counsel), for respondents.

FOSTER, P. J.

This is an appeal from an order of the Supreme Court which dismissed a petition for an order, pursuant to article 78 of the Civil Practice Act, to review a determination of respondents, who are Commissioners of Correction of the State of New York. The determination sought to be reviewed was that the crime of which petitioner had been convicted by a court-martial would have been a felony if committed in this State; and that petitioner, as a delinquent parolee, should be required to serve the remainder of a maximum sentence for a previous felony committed in this State. The authority for the determination was section 219 of the Correction Law.

That section provided in part (prior to amendt. by L. 1945, ch. 678, § 4, eff. July 1, 1945): 'If any prisoner while on parole from a state prison or from the Elmira reformatory shall commit a crime under the laws of another state government or country which if committed within this state would be a felony, and if he shall be convicted of such crime, he shall upon being returned to this state be compelled to serve in state prison the portion remaining of the maximum term of the sentence on which he was released on parole from the time of such release on parole until the expiration of such maximum.'

It appears without dispute that in January, 1946, petitioner was on parole from State prison, to which he had been sentenced by the Chemung County Court for the crime of robbery, second degree. He was then in the United States Army and serving in Japan. There he was tried and convicted by a general court-martial of a violation of the 93d Article of War, under these specifications:

Page 155

'1. In that, Private Harold E. Florance, Headquarters Company, Army Service Command O, APO 315, did, at Kobe, Japan, on or about 10 December 1945, by force and violence and by putting him in fear, feloniously take, steal and carry away from the person of Yukichi Tamura, 1197 Yen, value of about $79.80, and one watch and chain, value of about $10.00, all the property of said Yukichi Tamura, total value of about $89.80.

'2. In that Private Harold E. Florance, Headquarters Company, Army Service Command, APO 315, did, at Kobe, Japan, on or about 10 December, 1945, by force and violence and by putting him in fear, feloniously take, steal and carry away from the person of G. Ueda, 860 Yen, value of about $57.33, all the property of said G. Ueda.'

After conviction by the court-martial petitioner was sentenced to confinement at hard labor for five years. Upon his release from that sentence he was returned to Sing Sing prison as a parole violator, and charged with delinquent time for the unexpired part of the sentence imposed by the Chemung County Court for the felony he committed in this State.

Petitioner contends it was not the intent of the Legislature that section 219 of the Correction Law should apply to court-martial convictions. We can find no persuasive reason to support this contention. An army court-martial is a competent and duly constituted tribunal under the laws of the United States. The Army of the United States neither exists nor operates in a vacuum, and must of necessity be held a branch of the Federal Government. The Articles of War, which govern and control those in the military service, were enacted by Congress (U. S. Code, tit. 10, § 1565).

The fact that procedure under a court-martial differs from that followed in Federal and State courts does not detract from the force or competency of its judgments. This principle has been recognized in determining that a person convicted of a felonious offense by a court-martial was a subsequent offender within the meaning of section 1941 of the Penal Law ( People ex rel. Stewart v. Wilson,257 A.D. 555, motion for leave to appeal denied 281 N.Y. 888). There is no logical basis for refusing to apply the same principle to the Correction Law. Every argument against the use of court-martial convictions under the ...


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