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PEOPLE STATE NEW YORK EX REL CARL POPINO v. WARDEN NEW YORK CITY PENITENTIARY (02/03/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1969.NY.40351 <http://www.versuslaw.com>; 296 N.Y.S.2d 873; 31 A.D.2d 788 February 3, 1969 THE PEOPLE OF THE STATE OF NEW YORK EX REL CARL POPINO, APPELLANT,v.WARDEN OF THE NEW YORK CITY PENITENTIARY, RIKERS ISLAND, RESPONDENT Appeal from an order of the Supreme Court, Bronx County, entered on October 9, 1968, which dismissed a writ of habeas corpus. Stevens, J. P., Eager, Capozzoli and Tilzer, JJ., concur in decision; Steuer, J., in opinion.


Appeal from an order of the Supreme Court, Bronx County, entered on October 9, 1968, which dismissed a writ of habeas corpus.

Stevens, J. P., Eager, Capozzoli and Tilzer, JJ., concur in decision; Steuer, J., in opinion.

Order entered on October 9, 1968, unanimously affirmed.

Disposition

 Order entered on October 9, 1968, unanimously affirmed.

Steuer, J. (concurring).

On July 24, 1967, defendant pleaded guilty to a misdemeanor and was sentenced to an indefinite term under former article 7-A of the Correction Law. He has since been confined in the New York City Penitentiary on Rikers Island, where he still remains. He challenges the legality of his continued incarceration by writ of habeas corpus. The writ, we believe correctly, has been dismissed by Special Term.

While article 7-A has been repealed by the Legislature (L. 1967, ch. 324), many persons are still incarcerated pursuant to its provisions and, we are informed, a number of applications similar in effect to the instant application are pending. Exposition of the underlying reasons for decision may therefore prove useful rather than academic.

Article 7-A in effect provides for indeterminate sentences not to exceed three years for defendants convicted of misdemeanors in cities having a department of correction. The Parole Board of such cities in effect determines the period of incarceration within the prescribed period by its power to release the prisoner at any time. There are certain exceptions to the applicability of the indeterminate sentence (ยง 203), only one of which is here pertinent. It is found in subdivision (e) and reads:

"This article shall not apply to any person who is:

"* * *

"3. Insane, or mentally or physically incapable of being substantially benefited by being committed to a correctional and reformatory institution."

The petitioner bases his argument on this provision when read in conjunction with the first sentence of section 208, entitled "Declaration of intent" and reading: "The purpose of this article is to empower magistrates and courts of any such city to commit persons under indeterminate sentence to penitentiaries, reformatories and workhouses and to extend the reformatory and correctional functions of all such institutions."

It is the petitioner's contention that he has been given no correctional or reformatory treatment and that therefore his detention beyond the period for which he was punishable under the maximum sentence for his crime is illegal. Respondent Warden conceded that defendant has not been given any treatment pursuant to any special or particularized program.

It should be noted that the article has survived attack on constitutional grounds from virtually every conceivable angle. No discussion of this question is in order as petitioner does not challenge the validity of the statute. Nor does he question that at the time of sentence the court could rightfully impose an indeterminate sentence, as indeed the court could (People v. Thompson, 251 N. Y. 428). However, he argues that, as the indeterminate sentence is not a device to extend the period of sentence for punitive purposes (People ex rel. Gordon v. Ashworth, 9 Misc. 2d 449), ...


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