People ex rel. Morriale v. Branham

The relator, Charles Morriale, pleaded guilty to a charge of attempted robbery, third degree, and on April 5, 1935, was sentenced to Sing Sing prison for a term of six years. The relator admitted that he had previously been convicted of a felony. The court in sentencing the relator to Sing Sing prison recommended that he “ receive hospital treatment for his mental condition ”, but made no finding that he was a “ mental defective.”

No notice of the presentation of the petition was given to the relator, and he had no opportunity to challenge at that time the esc parte assertion and proof that he is a mental defective. In April, 1942, more than a year after the expiration of his term of imprisonment under the sentence imposed upon him as punishment for the criminal offense of which he was convicted, the validity of the order of retention, or recommitment, was challenged on the ground that no notice of the presentation of the petition was given to the relator, and that an order for his retention after the expiration of his sentence deprives him of his liberty without due process of law. The relator also claims that the order is invalid because it was made before the expiration of the relator’s term of imprisonment. The relator’s challenge was sustained at Special Term. The order sustaining the writ was reversed and the writ was dismissed by the Appellate Division, two justices dissenting.

Section 440 of the Correction Law provides that when the term of imprisonment of a prisoner confined in a state institution for defective delinquents ‘1 has expired, and, in the opinion of the superintendent thereof, such prisoner is a mental defective the superintendent shall apply to a judge of a court of record to cause an examination to be made of such person, by two qualified examiners * * If the examiners desig

The statute does not expressly require that notice of an application for the retention of a prisoner after the expiration of his term shall be given to the prisoner. The statute does require that the judge shall issue an order of retention only “ if satisfied ” that such prisoner is a mental defective. There must be judicial consideration and decision. An ex parte judicial decision that a prisoner otherwise entitled to his liberty shall continue to be retained in custody until, at some future time, he may be discharged by his custodian or may secure his release by habeas corpus proceedings, would be contrary to the traditions of the common law and perhaps would constitute a violation of rights guaranteed by the Constitution. A statute which authorizes a judicial order or decree for a person’s imprisonment or restraint must if possible be given a construction which will not offend constitutional guarantees of liberty or offend fundamental concepts of the common law. Unless the statute provides expressly or by necessary implication that an adjudication may be made without notice to the person whose detention or restraint is sought, we may reasonably find implicit in the statute a direction that the judicial decision and decree shall be made only in accordance with due process of law after notice and opportunity to be heard.

.We are told that the Legislature has supplied appropriate safeguards for the rights of a prisoner in a State institution for defective delinquents who is retained in custody after the expiration of his sentence under an ex parte order of retention, when it authorized an inmate of such an institution to seek “ delivery from custody ” by habeas corpus proceedings in which “ the fact of his mental defectiveness is material to the inquiry”. (Correction Law, § 446.) No order of retention is required where a mental defective convicted of a criminal

The respondent maintains that even if we should hold that the order for the relator’s retention, made pursuant to the provisions of section 440 of the Correction Law is invalid, the relator’s retention in custody would be lawful, because no such order was required in his case. In his return to the writ of habeas corpus the respondent alleges: “7. That the delinquency and criminal record of the said Charles Morriale, prior to his conviction on present charge, is as follows: ‘ 3/17/32, Kings County Court, Brooklyn, N. Y. Bobbery 2nd degree; sent to Institution for Male Defective Delinquents, Napanoch, N. Y.; term Indefinite; sent to the Napanoch Institution 4/13/32, paroled 4/13/34.’ ” It is now argued that since the relator violated his parole by committing the crime for which he was thereafter sentenced to imprisonment in Sing Sing for a term of six years, he should have been returned to Napanoch as a parole violator. It is conceded that if his parole had been revoked and he had been returned to Napanoch as a parole violator, no order for his retention in an institution for mental defectives would have been necessary. A mental defective committed in accordance with the provisions of section 438 to a State institution for" defective delinquents may be held under that commitment until paroled by the superintendent of the institution, subject only to his right to seek delivery from custody by habeas corpus proceedings instituted in accordance with section 446 of the Correction Law. (See People ex rel. Romano v. Thayer, 229 App. Div. 687 ; People ex rel Gaudino v. Superintendent of Institution for Male Defective Delinquents, Napanoch, 263 App. Div. 1042 .) That rule has, however, no application in this case, for the return shows that the relator, after he was paroled by the Superintendent of Napanoch Institution was not returned there as a parole violator, but was sentenced for a definite term and is held under that sentence. Since the sentence has expired and the order for the relator’s retention is not valid, the relator is now held under a commitment which furnishes no justification for retaining him in custody

The order of the Appellate Division should be reversed and that of the Special Term affirmed, without costs. (See 291 N. Y. 826 .)

Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ., concur.

Ordered accordingly.