People v. MacKenna

In 1940, the defendant, who had been indicted in the county of New York for attempted robbery in the second degree, attempted grand larceny in the second degree, assault in the second degree and for carrying a dangerous weapon after a prior conviction (see Penal Law, §§ 2120, 2126, 1290, 1296, 242, 1897), was allowed by the Court of General Sessions of that county to plead guilty on the assault count and to a charge of carrying a dangerous weapon as a misdemeanor (see Penal Law, §§ 2, 1897). The prior conviction alleged in the indictment took place in the State of Mississippi

On June 15, 1945, the defendant was released on parole — all but twelve days of the five-year minimum term of his New York sentence having theretofore been served. He then returned to his home in Louisiana but was there convicted upon charges of theft and forgery, in consequence of which he was later recommitted to prison here in New York as a parole violator.

In 1947, the New York sentence was vacated on the defendant’s motion, because the offense of which he had been convicted in Mississippi had finally been shown by him to have been the equivalent of no more than a misdemeanor in New York. Accordingly he was brought before the Court of General Sessions to be resentenced — this time as a first felony offender — and thereupon the same judge who had originally passed sentence upon him pronounced a new sentence in these words: “In the light of all the events and all the facts before me, the sentence that I am imposing is nunc pro tunc as of October 17, 1940, and the sentence is that the defendant be confined to State Prison for a term of not less than six nor more than ten years, of which not less than five years nor more than seven years is imposed as an additional punishment pursuant to section 1944 of the Penal Law, for the use of a gun in the commission of a felony. ’ ’ This sentence has been affirmed by the Appellate Division and is now before us for review on a certificate granted to the defendant pursuant to section 520 of the Code of Criminal Procedure.

The increased punishment authorized by section 1944 is an “ additional ” penalty, that is to say, it presupposes a substantive offense followed by an initial sentence to which it may be annexed .(see Matter of Lyons v. Robinson, 293 N. Y. 191 ). On that basis, we said in the Lyons case (supra) that invalidity of such an additional sentence did not require disturbance of a valid initial sentence imposed for a substantive crime, since the former sentence was “ severable ” from the latter (p. 195). Prom that premise, the present defendant • argues that the admitted invalidity of the initial sentence here imposed for assault in the second degree-was no warrant for the cancellation by the sentencing court of its original concomitant decision not to impose any additional sentence as increased punishment under section 1944. This proposition has been urged upon us with force and skill, but in the end we find ourselves unable to adopt it.

The initial sentence that was originally here imposed for the substantive crime of assault in the second degree was illegal and for that reason that sentence was -necessarily vacated at the defendant’s request. At that juncture, he stood before the court as one who had never been sentenced at all for the substantive felony to which he had pleaded guilty and in the commission of which, as he confessed, he had used a gun. Hence the new sentence which was then and there imposed — including the additional penalty under section 1944 — was warranted and the infliction thereof did not subject the defendant to double jeopardy (see People ex rel. Kerrigan v. Martin, 291 N. Y. 513 ; Bozza v. United States, 330 U. S. 160 , 165-167).

The judgment should he affirmed. [See 299 N. Y. 601 .]

Lewis, CoNWay, DesmoNd, Dye and Ptjld, JJ., concur.

Judgment affirmed.