People ex rel. Plattner v. Warden

The relator, by writ -of certiorari, seeks to .test the legality of his detention. It appears that said relátor was separately indicted, upon the same, day, for four different offenses. This proceeding, however, relates to but two thereof.

On March 27, 1913,.Dominick Plattuer, above named, was indicted for the crime of grand larceny in -the second degree,

The return to the writ herein shows that the relator is held under final judgment of a court of competent jurisdiction, which raises the question as to whether or not the relator is entitled in this proceeding to' the relief sought. If it be held that he has the right to raise the question by way of a writ, it follows that it must he upon the theory that the judgment of the court upon the plea to the indictment for carrying a dangerous weapon was void — the court being without power to render that particular judgment. A review of the authorities discloses that the point is not clear from doubt. In support thereof, hut hy way of writ of habeas corpus, see People ex rel. Gray v. Warden ( 168 N. Y. Supp. 708 ), People ex rel. O’Brien v. Warden (168 id. 707. Contra, see People ex rel. Lebelsky v. Warden ( 168 N. Y. Supp. 704 ) and cases cited; People ex rel. Goldstein v. Clancy ( 163 App. Div. 614 ), wherein it is pointed out. that the remedy .is by appeal. The question cannot he raised by writ of certiorari for the reason1 that-writs of error and certiorari in criminal actions and proceedings have long

In fairness to relator, however, it m-ay be well to ascertain what, if any, merit there is to his contention that a fixed or definite sentence could not be lawfully imposed upon him. -Such inquiry makes it necessary to refer briefly -to the- facts surrounding the circumstances: of the commission of the crime- or crimes as charged. The relator was- employed by a partnership conducting a factory at 104 Central -avenue, Brooklyn. On March "19, 1913, in the afternoon, the payroll had been brought from the bank and left on a table in the factory, from which he took said pay-roll, amounting to the sum of $289.25, and left the premises with it. Later in the day his employers reported the los-s -to the police, and two detectives, after making -an- investigation -of the premises, left with one of the members of the firm employing relator to find him, and early in the evening the search led them to relator’s boarding house, 777 B-ushwick"-avenue, some distance from the place of his employment. After a search of the premises relator was discovered leaving the premises by one of his employers, who demanded the money from him and pursued him, in which pursuit relator fired two shots; and thereafter the two detectives joined in the pursuit, in the course of which relator .also fired shots- from hi-s magazine pistol ■at the police officers, none -of the shots taking effect. Thereupon relator was overtaken, arrested, and the greater part of the money stolen was recovered. Thereafter he was- indicted, pleaded guilty arid sentenced as hereinbefore set forth.

The relator concedes that this proceeding turns' wholly upon whether he was, prior to the conviction and -sentence under the second indictment for the crime of carrying a dangerous weapon, a second offender within the meaning of section 1941 of the Penal Law1, and relies upon the ease of People v. Bergman ( 176 App. Div. 318 ) to sustain his contention, that he was not, within the meaning of said section" 1941, a person who had been

It will be noted that the court used the words “ second offender,” and. one who has not reformed since his “ first offense.” Said section 1941 distinctly defines -a second offender as “ a person, who, after having been convicted within this State, of a felony * * * .commits any crime, within this State, is punishable upon conviction of such second offense, as follows: * * *.” So that it seems clear that no one is a second offender under the statute until he commits a crime subsequent to the first conviction. The court, it seems, in the Bergman case, might well 'have substituted “ first conviction ” in place of “ first offense,” and, consequently, if the relator was not such an offender as defined in said -section 1941 he was entitled to the benefits of section 2189 of the Penal Law, although technically he was not such a person as therein defined, namely, one who had never before been convicted of' a crime punishable by imprisonment in a. State prison. In other words,

In Suss v. Farley ( 164 App. Div. 161 ) the same court which decided the Bergman case held that it was not necessary, in order to work a forfeiture of a liquor license, that the second conviction must be for an offense committed subsequently to the first conviction, the provision of the statute requiring two convictions only. The court therein stated that the holding that there should be a conviction for an offense committed after the first conviction in order to- work >a forfeiture would be adding words«and thoughts to the statute that are not to be found within its letter and spirit. Applying the same rule to section 1941 as construed in the Bergman case it would be necessary to read into said section a prior commission of a° felony in place of a conviction thereof, which would upon conviction render the accused a second offender, and which under Suss v. Farley, supra, is prohibited.

The case of People v. Rosen ( 208 N. Y. 169 ), holds that, in order to adjudge an accused person to be an habitual criminal under sections 1020 and 1021 of the Penal Law, the provisions of the statute must have been duly charged in the indictment, and further, by inference, that information obtained by examination under section 485a, Code of Oriminal Procedure, may be untilized by the court for the purpose of imposing, under section 1941 of the Penal Law, a fixed sentence upon an accused person, not charged as a second offender, instead of the indeterminate one to which a person not before convicted is en

Although it may be import-ant to have a full and definite construction by the appellate courts of-the provisions of section 1941 of the Penal Law and -the nature and extent and due application thereof, this court cannot by its determination of the only questions involved in this proceeding present the precise question for review. In thei first place the relator has mistaken his remedy; secondly, the case of People v. Bergman, supra (relator’s sole reliance), has no application for the reason that the crimes charged in the indictments herein relate to separate and distinct offenses- .and sufficiently separate in time; and, thirdly, fr-om -an- examination of all the papers submitted in this proceeding it clearly appears that, the relator- was not held to be, or -as, a second offender under section 1941 and was not so treated 'and sentenced. The fact is that the relator was given the longest term in the form -of a fixed or determinate sentence for -a first -offense, for which full -authority is found in section 485-a, 'Criminal Procedure, and sections 1897, 1935 and 2189 of the Penal Law, and in People v. Bosen, supra.

The relator’s contention,. therefore, that 'he is illegally detained is without merit -and it follows -that the writ must be dismissed.

Writ dismissed.