Lewis v. Carter

The appellant seeks a peremptory writ of mandamus compelling the board of parole of state prisons to reconsider and rescind a parole granted by the board to John Bassi. Thus far he has failed.

In December, 1902, Bassi was indicted for and, upon trial, found guilty by the verdict of the jury, in Kings county, of the crime of burglary in the third degree —- a crime punishable by imprisonment in a state prison. (Penal Law, section 407.) Sentence upon the verdict was suspended during his good behavior. In June, 1914, he was indicted and convicted in Kings county for criminally receiving stolen property, and thereupon was sentenced to imprisonment in the state prison for the term of three years. The Penal Law prescribed that an

The chief question between the counsel for the different parties, in their briefs and arguments, is, has Lewis, as the district attorney of Kings county, the authority to institute this proceeding ? The attorney-general, in behalf of the respondents, asserts that upon the conviction and imposition of the sentence the prosecution and therewith the jurisdiction and authority of the district attorney ceased, and the attorney-general of the state is the only public officer authorized to invoke the aid and processes

At common law, as administered in England or the American colonies, the office of attorney-general existed; that of district attorney did not. The attorney-general was, speaking broadly, the chief law officer of the sovereign, charged with the duties of protecting the revenues and property of the sovereign, of securing, through the prosecution of persons accused of criminal offenses, the peace and safety of the people, of securing the lawful occupation of public offices and the lawful exercise of public grants, franchises and corporate and trust powers. The first attorney-general of the state was appointed by the Constitutional Convention of 1777, together with other officers deemed necessary to establish the new state government. The first Constitution, that of 1777, did not make direct or express provision for the office. It provided for a council of appointment by whom all officers other than those who, by the Constitution, were directed to be otherwise appointed, should he appointed. In 1796 the legislature passed an act entitled “An act making provision for the more due and convenient conducting public prosecutions, at the courts of oyer and terminer and gaol delivery, and general sessions of the peace.” (Chapter 8.) The act divided the state, except ’the city and county of New York, into seven districts and enacted that for and in each district a resident proper person of the degree of counsel in the supreme court should he appointed to the office thereby created of assistant attorney-general with the duty to attend criminal courts of the district, ‘c manage and conduct all suits and prosecutions for crimes and offenses cognizable in the said courts, ” and as to the districts the duty of the attorney-general in such respect, except as especially imposed, should cease.

In 1801, chapter 146 of the laws of that year was

A prosecution for crime, within the meaning of this statutory language, includes accomplishing the imposition of the punishment. All the means provided by the law to bring conviction, sentence and the adjudged punishment to a criminal offender constitute the prosecution for the crime committed by him. It is apart of the prosecution to effect the delivery of the convicted person to the prison authorities, in accordance with the judgment of conviction. In case the sheriff of Kings county had, in the case here, in violation of the statute (Code -of Criminal Procedure, section 489) refused or neglected to enter upon the execution of the judgment, by delivering “ a copy of the entry of the judgment upon the minutes of the court, together with the body of the defendant, to the keeper of the prison,” the district attorney would have been bound, by virtue of the statutory duty “ to conduct all prosecutions for crimes ” to invoke the process of the law commanding and compelling performance on the part of the sheriff. The assertion by the sheriff or defendant that the official interest and jurisdiction of the district attorney were consumed and extinguished by the trial, verdict and final judgment would, apparently, be ill-founded and factitious. It seems certain and manifest that a prosecution for a crime includes the induction of the convicted offender into his adjudged punishment.

It was also a part of the prosecution for the crime, within the statutory duty of the district attorney, to institute and enforce in the courts any proceeding or means, authorized by law, for the restoration of the judgment and the subjection of Bassi to it. The board of parole had undertaken to reverse and abrogate, and in practical effect had abrogated and reversed, the judgment of the court for the period of the definite sentence from December 15,1915. The obtaining of the judgment was a part of the prosecution which the law imposed upon the district attorney

Upon th'e question as to whether or not Bassi, when the definite sentence was imposed, had “ been convicted of a crime punishable by imprisonment in a state prison,” within the meaning of those words as used in section 211 of the Prison Law, the district attorney and the attorney-general are in accord in asserting that he was so convicted on December 15, 1902, and little need be written. The word ‘ ‘ convicted ” or “ conviction ” is of equivocal meaning. It may mean the adjudication of guilt whether by plea, finding or verdict. It may mean the adjudication and the judgment or sentence. We reviewed the leading cases in People v. Fabian ( 192 N. Y. 443 ). There the question was whether an elector had forfeited the right of suffrage. We construed the provision of the Election Law (Cons. Laws, ch. 17, section 175) that “ no person who has been convicted of a felony shall have- the right bo register for or vote at any election unless he shall have been pardoned and restored to the rights of citizenship.” We held that a suspended sentence was not a conviction within the meaning of that statute. We laid it down as the general rule that ‘ ‘ where disabilities, disqualifications and forfeitures are to follow upon a conviction, in the eye of the law, it is that condition which is evidenced by sentence and judgment.” At the same time we were careful to point out that the rule was not invariable. Judge Willard Bartlett, writing

A scrutiny of the statutes in pari materia with the section of the Prison Law reveals that the legislature intended that a person adjudged guilty of a crime of the designated description was a convicted person for the purpose of the section. (See Penal Law, sections 2184-2189, 2, 30; Code of Criminal Procedure, section 470b.) It may be argued that by this construction of the section some of its words become superfluous. The statute says that every person “under sentence for a definite term for a felony, who has never before been convicted of a crime punishable by imprisonment in a state prison,” (Prison Law, section 211) is subject to parole. If a definite term imports a second offense, there was no need, it may be said, of excepting first offenders. The answer to that argument is to be found in the history of the statute. To-day it is true that definite sentences (except for murder either in the first or in the second degree) are unlawful for first offenses. But it has not always been true. Por a long time indeterminate sentences,-even for first offenses, were limited to crimes where the maximum imprisonment was five years. (Laws of 1901, chap. 425.) Not until 1907 were they required for all first offenses other than murder. (Laws of 1907, chap. 737.) With this expansion of indeterminate sentences there has been an accompanying expansion of the privilege of parole in cases of definite sentences. At first, where the sentence was definite, there could be no parole unless the maximum imprisonment was five years. (Laws of 1901, chap. 260; Laws of 1902, chap. 500; Laws of 1909, chap. 240, § 63.) By an amendment of the Prison Law in 1909 (Laws of 1909, chap. 489) that

Moreover, the board of parole had not power to violate the sentence imposed by the court. It was a judgment, a judicial determination, obligatory upon the state and each of its officers until it was reversed or annulled by the judgment of an appellate court, or a judicial determination made in a proceeding attacking it directly. The board of parole had not the right to substitute for it a judgment or sentence of their own creation.

The orders of the Appellate. Division and Special Term should be reversed, without costs,- and a peremptory writ of mandamus should issue as prayed for in the petition.

Chase, Cuddebaok, Hogan, Cardozo and Pound, JJ., ' concur.

Orders reversed, etc.