People v. De Santis

110 N.E.2d 549, 305 N.Y. 44

• Court: New York Court of Appeals
• Decided: January 21, 1953
• Status: Published

Opinions

Froessel, J.

We are all satisfied that the evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt, and that the verdict was not inconsistent.

It was not reversible error to include in the indictment allegations charging defendant as a prior offender, and to receive proof therof at the trial. This has long been the settled practice in this State (Johnson v. People, 55 N. Y. 512; People v. Sickles, 156 N. Y. 541; People v. Gowasky, 244 N. Y. 451), and countless convictions were based on such indictments. The Legislature has not prohibited this practice by its enactment in 1926 of section 1943 of the Penal Law (L. 1926, ch. 457). That statute, so far as pertinent herein, provided: “ If at any time, either after sentence or conviction, it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth either in section nineteen hundred and forty-one or nineteen hundred and forty-two, it shall be the duty of the district attorney of the county in which such conviction was had to file an information accusing the said person of such previous convictions.” (Emphasis supplied.)

The Joint Legislative Committee on the Co-ordination of Civil and Criminal Practice Acts, popularly known as the Baumes Committee, recommended this legislation. In its 1926 report (N. Y. Legis. Doc., 1926, No. 84, p. 22), it said: “ Resentencing of Second Offenders. There are times when a defendant is found guilty of the offense for which he has been tried without its being known by the prosecuting officers or the court that it is the second criminal offense of which he is guilty. Perhaps the facts were not known when the indictment was drawn. * Society should be protected and the criminal receive his just dues. We approve the suggestion that provides for the court sending for such a prisoner and resentencing him in accordance with his new found criminal history and recommend appropriate, carefully prepared legislation.” It is clear that the purpose of this legislation was to make it mandatory upon the prosecutor, when a defendant has not been indicted as a prior offender, to file an information “ either after sentence or conviction ” accusing him of the previous conviction. It was aimed at proper punishment of those multiple offenders whose previous convictions were unknown to prosecuting authorities at the time indictments were drawn. There is no indication whatsoever that the Legislature intended to outlaw the previous practice; section 1943 is an addition to, rather than an abolition of, pre-existing procedure. So it has been held by us in People v. Zeiler (243 App. Div. 542, affd. 268 N. Y. 582) following People v. Gowasky (244 N. Y. 451, supra); (see, also, People v. Reese, 258 N. Y. 89,101; Matter of Dodd v. Martin, 248 N. Y. 394, 397). If the long-standing practice complained of is to be abolished, it must be accomplished by legislative enactment and not by judicial decision.

The judgment should be affirmed.