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People v. Kelly

Supreme Court of New York, Appellate Division

July 8, 1954

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
FREDERICK S. KELLY, Appellant.

Page 422

APPEAL from a judgment of the County Court of Rensselaer County (PITT, J.), rendered February 26, 1953, on defendant's plea of guilty of the crime of escape (Penal Law, § § 1694, 1699).

COUNSEL

Timothy F. O'Brien, District Attorney (John T. Casey of counsel), for respondent.

Frederick S. Kelly, appellant in person.

HALPERN, J.

The defendant had originally been sentenced as a second offender to a term of six to seven years, on a plea of guilty to an indictment charging him with the crime of escape in violation of section 1694 of the Penal Law. Subsequently, he attacked the sentence by a writ of error coram nobis and the sentence was vacated, upon the ground that it was improper to sentence the defendant as a second offender, since the second and third offender statute (Penal Law, § 1941) did not apply to the crime of escape (Penal Law, § 1699). It was accordingly ordered that the defendant be resentenced as a first offender. However, the County Court imposed the same sentence of six to seven years, upon the defendant as a first offender. This appeal is taken from that sentence.

The propriety of the sentence turns upon the construction of section 2189 of the Penal Law governing the sentences of first felony offenders. This section so far as here relevant reads as follows: 'A person never before convicted of a crime punishable by imprisonment in a state prison, or who, though previously convicted of such a crime, is not punishable under the provisions of section nineteen hundred forty-one or nineteen hundred forty-two, who is convicted in any court of this state of a felony * * * 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

Page 423

longest period fixed by law for which the crime is punishable of which the offender is convicted.'

Section 1699 of the Penal Law provides that the punishment for the crime of escape shall be 'not less than one year nor more than seven years'.

The trial judge did not write an opinion in this case giving the reasoning by which he had arrived at the conclusion that a sentence of six to seven years was proper despite the fact that the defendant was entitled to be treated as a first offender, but in an opinion in an earlier case involving the crime of robbery in the first degree committed by a first offender, he had set forth his reasoning in full ( People v. Hilt, 199 Misc. 886). He reasoned that the provision of section 2189 to the effect that 'the minimum * * * shall not be less than one year, or in case a minimum is fixed by law, not less than such minimum' (p. 888), constituted the sole standard for the determination of the minimum of the indeterminate sentence. He held that since a minimum sentence was specifically prescribed for robbery in the first degree (and here, for the crime of escape), 'the remainder of section 2189 following the word 'otherwise' is immaterial to the problem under consideration. The only restraint section 2189 of the Penal Law places upon a court, when the minimum is prescribed by law, is to require the minimum of an indeterminate sentence to be not less than such minimum.' (P. 889.)

Under this construction of section 2189, there was no upper limit to the minimum of an indeterminate sentence, if the case was one in which a minimum was fixed in the statute prescribing the punishment for the crime. In effect, the court construed the word 'otherwise' to mean 'in other cases' and the court held that, since this case was one which came within the first part of the section preceding the semicolon, it could not fall within 'other cases' and therefore the latter portion of the section, following the semicolon and beginning with the word 'otherwise', had no application.

The court cited as authority for its construction of the section a decision of this court rendered in 1941 which sustained a sentence of an indeterminate term of not less than twenty-five nor more than thirty years for the crime of robbery in the first degree (People ex rel. Caiazzo v. Wilson,262 A.D. 796). In the Caiazzo case, which came to this court upon appeal from a dismissal of a writ ...


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