Opinion
August, 1916.
Clarence Y. Palitz, for appellant.
Frederick J. Sullivan, deputy assistant district attorney, for people.
The defendant appeals from a judgment rendered in the City Magistrates' Court on the 5th day of June, 1916, convicting him of the offense of disorderly conduct tending to a breach of the peace, in that he loitered in front of the German and the Corn Exchange Banks, in the borough of Manhattan, county of New York, for a period of about one and one-half hours, and that he followed an unknown woman who came out of the latter bank. The defendant was sentenced to the workhouse for an indeterminate period not to exceed two years.
The appellant urges that the judgment of conviction should be reversed on the following grounds: 1. That the evidence of guilt was inadequate; 2. That the sentence is illegal because the magistrate failed to comply with section 4 of chapter 579 of the Laws of 1915, as amended by chapter 287 of the Laws of 1916.
There is no merit in the claim of the appellant that his conduct fails to spell out the offense of disorderly conduct tending to a breach of the peace. Upon the uncontradicted facts the defendant was clearly guilty of this offense. People v. Mansi, 129 A.D. 386.
The contention of the appellant that the sentence is illegal must be sustained.
Section 4, supra, among other things, provides as follows: "That no person convicted in any of said cities of vagrancy, disorderly conduct, tending to a breach of the peace, public prostitution, soliciting on streets or public places for the purpose of prostitution, or the violation of section one hundred and fifty of chapter ninety-nine of the laws of nineteen hundred and nine, as amended, shall be sentenced to any such workhouse for a definite term until the finger print records of the city magistrates' courts of said city are officially searched with reference to the particular defendant and the results thereof duly certified to the court; and provided, further, that if it shall appear to the court at any stage of the proceeding prior to the imposition of sentence and after due notice and opportunity to the defendant to be heard in opposition to such accusation of prior convictions that any person convicted of any or each of these offenses last enumerated has been convicted of any or each of these offenses two or more times during the twenty-four months just previous, or three or more times previous to that conviction, then the court shall sentence such offender to a workhouse of the said department of correction in said city for an indeterminate period. The term of imprisonment of any person convicted and sentenced to any such workhouse for an indeterminate period shall not exceed two years and shall be terminated by the parole commission in the manner prescribed in section five of this act and not otherwise."
The magistrate not only failed, after the conviction of the defendant and before the imposition of sentence, to give due notice and opportunity to the defendant to be heard in opposition to the accusation of prior convictions but there was no legal proof before him establishing that the defendant had been convicted "of any or each of these offenses two or more times during the twenty-four months just previous" to the present conviction. These two conditions are indispensable before a defendant convicted of any of the offenses enumerated in section 4, supra, can be sentenced to the workhouse for an indeterminate period of two years.
In People v. Dean, 94 Misc. 502, my learned associate, Judge Nott, said: "I am unable, however, to find that upon the proceedings had after the defendant was pronounced guilty and before sentence, she received any notice whatever that those proceedings were being had under the provisions of the statute to determine whether or not she should receive an increased punishment as a second offender. She was removed to have her finger prints taken without such notice. * * * When she was brought back after the finger prints had been taken, she received no such notice. * * * In my opinion, therefore, she was not accorded due process of law upon the proceedings to determine whether or not she was a second offender."
Since the statute in clear and explicit terms makes it incumbent upon the magistrate, after the conviction of a defendant of any of the offenses enumerated in section 4, supra, and prior to the imposition of the sentence, to give due notice and an opportunity to the defendant to be heard, in opposition to the accusation of prior convictions, then any sentence in excess of six months imposed upon such a defendant without notice, etc., is illegal and void.
To establish the prior convictions of the defendant the magistrate called Probation Officer McCroddy who testified, among other things, as follows:
"Defendant's previous police record is as follows: March 25th, 1906, in Children's Court for petit larceny, stealing purse containing $6 from a Rose Greenwald, of 116 Columbia Street. March 26th, pleaded not guilty and convicted by Justice McAvoy, and sentence suspended.
"December 26th, 1907, in Third District Court, burglary, broke into junk shop and stole a quantity of brass valued at $10. Complainant was Jacob Frank of 501 East Houston Street. Remanded to January 2d 1908, when he was discharged by Magistrate Breen.
"March 9th, 1908, in Children's Court, trying doors of soda water stands and acting suspiciously. Pleaded guilty to section 291 Penal Law and was committed by Justice Mayo to the House of Refuge, on his father's request. Released from House of Refuge September 1st, 1909. Reported regularly and finished parole.
"May 26th, 1916, Third Court, attempted robbery. Magistrate Levy adjourned the case to the 29th, and then to the 30th, when he was discharged."
Thus, it will be observed that the two convictions of the defendant were for acts of juvenile delinquency and not of offenses mentioned in section 4, and that both of these convictions occurred at least eight and ten years, respectively, prior to the present conviction.
Even if the magistrate had given the defendant due notice and opportunity to be heard in opposition to the accusation of prior convictions, and even if the two convictions of the defendant had occurred within twenty-four months just previous to the present convictions, the testimony of the probation officer could not be legally admitted for the reason that there is an express statute which requires that the conviction of a person must be proved by the record and not by parol. Penal Law, § 2444; People v. Cardillo, 207 N.Y. 70. Furthermore, the testimony of the probation officer was purely hearsay.
In this case, supra, a witness called by the People testified as follows: "Q. Did the defendant tell you that he had spent one year and twenty-five days in jail near Trenton for striking a man in the eye? Mr. Hughes: Objected to as leading and irrelevant, immaterial and incompetent. Objection overruled. Exception taken by Mr. Hughes. A. He did. By the Court: Q. Did he tell you that in English? A. Yes, sir, the same day."
Chief Judge Bartlett, writing the opinion, said: "It was not permissible to prove the defendant's conviction of crime in this way. In removing the disqualification of convicted persons as witnesses, the legislature prescribed the methods and the only methods by which a conviction can be proved. (See People v. McGloin, 91 N.Y. 241.) Section 832 of the Code of Civil Procedure provides as follows: `A person, who has been convicted of a crime or misdemeanor is, notwithstanding, a competent witness in a civil or criminal action or special proceeding; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by the record, or by his cross-examination, upon which he must answer any question, relevant to that inquiry; and the party cross-examining him is not concluded, by his answer to such a question.' Section 392 of the Code of Criminal Procedure declares that the rules of evidence in civil cases are applicable also to criminal cases; and section 2444 of the Penal Law provides: `A person heretofore or hereafter convicted of any crime is, notwithstanding, a competent witness, in any cause or proceeding, civil or criminal, but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record, or by his cross-examination, upon which he must answer any proper question relevant to that inquiry and the party cross-examining is not concluded by the answer to such question.'
"These enactments which thus explicitly prescribe the record or the admission of the witness on cross-examination as the means whereby his conviction may be proved for the purpose of affecting his credibility impliedly prohibit the reception of any other or different proof."
The indeterminate sentence not to exceed two years being illegal, the judgment, therefore, must be modified by the imposition of a definite sentence, and accordingly the defendant is sentenced to a definite term of six months in the workhouse, the sentence to take effect from the date of his conviction, namely, June 5, 1916.
Judgment modified and, as so modified, affirmed.