Opinion
Submitted April 2, 1928
Decided May 1, 1928
Appeal from the Supreme Court, Appellate Division, Second Department.
Charles J. Dodd, District Attorney ( Henry J. Walsh of counsel), for appellant.
Caesar B.F. Barra and Ralph J. Barra for respondent.
In the County Court of Kings county the defendant was convicted of robbery, first degree, and sentenced to Sing Sing State Prison for an indeterminate sentence, the maximum to be thirty years and the minimum fifteen years and five to ten years additional pursuant to section 1944 of the Penal Law. On appeal, the Appellate Division modified the judgment by striking out the additional sentence and certified the case to us. We think the Appellate Division was right in its modification. (See, also, People v. Kevlon, 221 App. Div. 224.)
Robbery is the unlawful taking of personal property from the person or in the presence of another against his will by means of force or violence. (Penal Law, sec. 2120.) It becomes robbery, first degree, when committed by a person armed with a dangerous weapon or being aided by an accomplice actually present. (Penal Law, sec. 2124.)
The defendant was associated in the commission of the crime with one named Napalentano, who was armed with a pistol. The defendant had no pistol. Robbery having been committed, it became a first degree robbery for two reasons: 1st, one of the principals had a dangerous weapon; 2d, the defendant was aided by an accomplice actually present. Because the two were acting together it would have been robbery, first degree, if neither had had a pistol. The same applies to burglary. (Penal Law, sec. 402.)
These two men were principals in the crime (Penal Law, sec. 2) and the crime was first degree robbery for the two reasons stated.
Having been convicted, how were they to be sentenced? Not necessarily alike. The punishment is provided by section 2125 as imprisonment for not less than fifteen years. If one of these two defendants had been a fourth offender, then by section 1942 of the Penal Law, the sentence imposed on him would have been imprisonment for life. The criminal history of the defendant sometimes makes considerable difference in the sentence. One previously convicted of a felony is more severely punished than a first offender. ( People v. Gowasky, 244 N.Y. 451.)
Section 1944 like section 1942 applies to the sentence of the particular defendant and not to the nature of the crime. Where one of two or more criminals has a dangerous weapon, the degree of the crime which all commit may be raised by reason of the weapon — all acting together are guilty of the same crime, but when it comes to the punishment, the one having the weapon is to get an additional sentence as provided in section 1944. The intention of the Legislature was to discourage the carrying of weapons and to make an added risk in committing crime to the one having the pistol or the gun. Heretofore the one with the gun ran no more chances than the others without weapons — now he will get five to ten years more for his cowardice.
The judgment should be affirmed.
CARDOZO, Ch. J., POUND, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Judgment affirmed.