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PEOPLE STATE NEW YORK v. CHARLES TANNENBAUM (12/11/68)

COURT OF APPEALS OF NEW YORK


decided: December 11, 1968.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
CHARLES TANNENBAUM, APPELLANT

Reargument of an appeal, originally decided by the Court of Appeals on September 29, 1966 (see 18 N.Y.2d 268), from a judgment of the Appellate Term of the Supreme Court in the First Judicial Department, entered March 3, 1966, affirming a judgment of the Criminal Court of the City of New York, New York County (William E. Ringel, P. J., Joseph Dyer and Guy G. Ribaudo, JJ., at time of conviction; Harold Baer, P. J., Pauline Malter and John Mangan, JJ., at time of sentence), which convicted defendant of a violation of section 484-i of the former Penal Law.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating, Breitel and Jasen concur.

 Memorandum. Upon reargument, the judgment appealed from should be reversed and the information dismissed. Defendant was convicted of violating section 484-i of the former Penal Law, and his conviction was sustained by this court (18 N.Y.2d 268). On direct appeal to the Supreme Court of the United States, his appeal was dismissed as moot (388 U.S. 439). In Rabeck v. New York (391 U.S. 462), the Supreme Court held section 484-i to be unconstitutional on its face. In light of that decision, we granted defendant's motion for reargument (22 N.Y.2d 972).

There is no question that Rabeck v. New York must be applied to this conviction. Where a substantive criminal statute has been held unconstitutional, there is no alternative but to give the decision retroactive effect for the declaration of unconstitutionality is a statement that the defendant has committed no crime. Were the defendant presently imprisoned, he would most certainly be entitled to habeas corpus relief. We are not here dealing with a rule of criminal procedure (Fuller v. Alaska, 393 U.S. 80; Stovall v. Denno, 388 U.S. 293; Johnson v. New Jersey, 384 U.S. 719; Tehan v. Shott, 382 U.S. 406; Linkletter v. Walker, 381 U.S. 618; People v. Sayers, 22 N.Y.2d 571; People v. Kaiser, 21 N.Y.2d 86). Since the statute defining the crime has been declared invalid, the conviction cannot stand.

Upon reargument: Judgment reversed and information dismissed in a memorandum.

Disposition

Upon reargument: Judgment reversed and information dismissed in a memorandum.

19681211

© 1998 VersusLaw Inc.



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