
    People of the State of New York, Respondent, v. Mabel Dean, Appellant.
    (Court of General Sessions of the Peace, in and for the County of New York,
    March, 1916.)
    Constitutional law — when statute is constitutional—'provisions of Laws of 1915, chap. 579, § 4, known as the “Parole Board Act.”
    Section 4 of the statute known as the “ Parole- Board Act ” (Laws of 1915, chap. 579) which provides “ The duration of the commitment of any person to a workhouse shall be for a definite period not to exceed six months, provided, however, that if it shall become known to the court through competent evidence, at any stage of the proceeding prior to the imposition of sentence that any person convicted of * * * public prostitution, soliciting on streets or public places for the purpose of prostitution, * * * 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 commit such offender to a workhouse, of the said department of correction in said city for an indeterminate period, which shall not exceed two years,” is constitutional, and one may be convicted thereunder as a second offender though the first offenses were committed prior to the enactment of the statute.
    After defendant had been convicted under said statute of disorderly conduct in soliciting upon the streets for the purposes of prostitution, but before sentence was imposed, it appeared by her admissions made to counsel that she had been convicted six times for the same or similar offenses prior to the time the statute went into effect. On appeal from the judgment of conviction, held:
    That the statute was constitutional.
    It appearing that upon the proceedings had after defendant was pronounced guilty and before sentence she received no 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, but was removed to have her finger prints taken without such notice, she was not accorded due process of law upon the proceedings to determine whether or not she was a second offender, but it appearing by her prior record that she had been frequently convicted and had been accorded the benefit without avail, an indeterminate sentence to the workhouse not to exceed two years imposed upon her conviction should be modified to a definite sentence of six months to take effect from the date of conviction, and, as so modified, the judgment of conviction will be affirmed.
    Appeal from a judgment of a city magistrate convicting the defendant of disorderly conduct in soliciting upon the streets for purposes of prostitution, rendered on the 14th day of February, 1916. The defendant was thereupon sentenced to the workhouse for an indeterminate sentence, not to exceed two years.
    Brande & Weber, for appellant.
    James E. Smith (Edward Swann, District Attorney), for the People.
   Nott, J.

This defendant was sentenced under the provisions of section 4 of chapter 579 of the Laws of 1915, commonly known as the Parole Board Act. The act went into effect on the 1st day of January, 1916, and among other things provides that “The duration of the commitment of any person to a workhouse shall be for a definite period not to exceed six months, provided, however, that if it shall become known to the court through competent evidence at any stage of the proceeding prior to the imposition of sentence that any person convicted of * * * public prostitution, soliciting on streets or public places for the purpose of prostitution, * * * 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 commit, such offender to a workhouse, of the said department of correction in said city for an indeterminate period, which shall not exceed two years.”

After the magistrate had determined the guilt of the appellant, but before sentence was imposed, it appeared that she had been convicted six times previously of the same or similar offenses and such convictions were admitted by her through her counsel.

The defendant attacks the constitutionality of the act upon the ground that it violates the provisions of article I, section 6 of the Constitution of the state of New York in that it deprives a defendant of liberty without due process of law.

It was argued upon the trial of the case that as the prior convictions were elements of the crime it was error to consider any convictions which occurred prior to the 1st of January, 1916, when the act went into effect. It may be sufficient to point out that the analagous statute providing punishment for a second offender (Penal Law, § 1941) makes its provisions applicable to a case where the first offense has been committed ‘1 under the laws of any other state, government or country.” If an act without the jurisdiction of the court by reason of place may constitute the necessary element of the crime, it is not easy to see why a similar act committed before the jurisdiction was acquired does not likewise satisfy the statute. Also, it has been held in People v. Price, 53 Hun, 185, and People v. Carlesi, 208 N. Y. 547, that a conviction as a second offender will be affirmed where the defendant has received a full pardon for the first offense. I am therefore of the opinion that defendant under the statute in question may be convicted as a second offender, even though, the first offenses were committed prior to the passage of the act.

The constitutionality of the act is attacked on the ground that the defendant may be tried without notice that she is on trial as a second offender, and without an opportunity to contest her prior convictions and that she is, therefore, deprived of due process of law.

There is no doubt that notice of the offense charged and an opportunity to contest the charge must be given before a person has been convicted by due process of law. “ Notice is an essential ingredient of due process of law, as a matter of right and not as a matter of favor or good judgment.” People ex rel. Simpson Co. v. Kempner, 154 App. Div. 674; Coe v. Armour Fertilizer Works, 237 U. S. 413. “A hearing or an opportunity to be heard, in which the citizen may defend, enforce and protect his rights, is absolutely essential to constitute due process of law.” Stuart v. Palmer, 74 N. Y. 183. See also People ex rel. Barone v. Fox, 144 App. Div. 621, reversed, 202 N. Y. 616, where the Court of Appeals adopted the dissenting opinion of Clarke, J., in the Appellate Division. Also People ex rel. Loughran v. Flynn, 110 App. Div. 279; Matter of Grout, 105 id. 98; Goldie v. Goldie, 77 id. 14. Examination of these and similar cases shows that these safeguards provided by the Constitution must be observed, not only in the case of crimes prosecuted by indictment, but in cases of offenses of all grades.

Is this statute passed in violation of the law as laid down in the cases above referred to? Many of those, cases, of which People ex rel. Barone v. Fox, supra, is an example, arose on the construction of statutes where guilt or increased punishment was made to depend upon an examination held by people other than the court, and not during the trial and not subject to cross examination by the defendant. I am of the opinion that this statute does not fall within that class but is analagous to section 1941 of the Penal Law, providing an increased punishment for second offenders. That section, by its terms, does not provide for any notice to be given that the defendant is on trial as a second offender, nor does it provide by its terms for an opportunity to litigate that element of the offense. It merely provides that a person who has been heretofore convicted, and thereafter commits a felony, is punishable upon conviction of such second offense in a certain manner. The appellate courts of the state, however, have upheld the constitutionality of the act and have only reversed convictions had under it where the defendant did not receive notice by the indictment that he was charged as a second offender and did not have an opportunity to contest the fact of his prior conviction. See People v. Sickles, 156 N. Y. 541. See, also, People v. Rosen, 208 N. Y. 169; and People ex rel. Bretton v. Schleth, 68 Misc. Rep. 307. In these two cases, while judgments of conviction were reversed because the defendants had been convicted without due process of law, nevertheless the constitutionality of the statute was upheld. As the statute now under consideration, in my opinion, is analogous to section 1941 of the Penal Law, its constitutionality must be upheld and this judgment affirmed.

If the defendant in this case was convicted without due process of law as a second offender, the sentence must be modified in accordance with the provisions of section 764 of the Code of Criminal Procedure, which provides that: After hearing the appeal the court must give judgment without regard to technical errors or defects * * * and may render the judgment which the court below should have rendered * * * or may modify the sentence.”

The minutes of the trial show that the only evidence against the defendant up to the time that the magistrate pronounced her guilty was the testimony of the police officer, and no evidence of prior convictions up to that time was given, and no notice was given to her that she was being tried as a second offender. At the close of "the trial the magistrate found her guilty and directed that her finger prints be taken. Upon thé return of the defendant from the finger print bureau the magistrate made a statement of her prior convictions, he evidently having been furnished with a record indicating those facts. The defendant’s attorney, however, admitted on the record that the defendant had been convicted according to the record.

The Court of Appeals in the case of People v. Rosen, supra, said: “ It may also be assumed that the legislature might provide for an independent trial of the question whether a convicted person had been convicted of a prior offense, and make an affirmative determination reached in such proceedings the basis for the additional punishment on the last conviction, although such prior offense had not been charged in the indictment for the later crime. ’ ’

In my opinion the legislature intended to provide in this act that the trial of the issue of a prior conviction may be had in a separate proceeding, following the conviction of the defendant. This is clearly indicated by the use of the words “ provided, however, that if it shall become known to the court through competent evidence at any stage of the proceeding prior to the imposition of sentence, that any person,” etc. If, therefore, the defendant after being pronounced guilty by the magistrate were found to be a second offender in a proceeding wherein she had notice of the object of the proceeding, a chance to litigate the charge, and wherein any competent evidence was adduced against her, she was properly sentenced.

In this particular case the prior convictions were not proved by competent evidence, but a concession or admission upon the record supplies the place of evidence and her prior convictions were conceded by her counsel upon the record. Therefore, it remains only to determine whether she received notice of the charge against her, which, as before stated, is a necessary-ingredient of due process of law. People ex rel. Simpson Co. v. Kempner, supra. As this case was one in which the magistrate could have proceeded without a written information (See People ex rel. Smith v. Van De Carr, 86 App. Div.. 9), probably the giving of written notice was not essential.

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. If she had received such notice it might well be that she would have refused to allow the taking of the finger prints, on the ground that by their taking she would be compelled to furnish evidence against herself upon the trial of the issue of her prior convictions. As it was she may have supposed that her finger prints were being taken merely for the purposes provided by law before the enactment of the Parole Board Act. 'When she was brought back after the finger prints had been taken, she received no such notice. If she had she might not have made the concession of her convictions upon the record, but might have insisted upon those convictions being proved by competent evidence. 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.

The judgment, therefore, must be modified by the imposition of a definite sentence. As it appears by the defendant’s prior record that she has been frequently convicted and has been accorded the benefits of reformatory treatment, without avail, the defendant is sentenced to a definite sentence of six months in the workhouse, sentence to take effect from the date of her conviction, namely, February 14, 1916. The judgment, as so modified, is affirmed.

Judgment modified and affirmed.  