
    The People of the State of New York, Respondent, v. Samuel Rosen, Appellant.
    First Department,
    May 31, 1912.
    Crime — sentence — habitual criminal — indictment need not charge defendant as second offender — statutes construed—when no right to indeterminate sentence.
    Although an indictment for the crime of burglary did not charge the defendant as a second offender, the .court after a plea of guilty may determine on competent evidence that the defendant had been previously convicted of a felony, may adjudge him an habitual criminal and may impose sentence upon him as such. The fact that the indictment does not charge the defendant as a second offender does not require the court to impose an indeterminate sentence under section 2189 of the Penal Law.
    A person who has committed a crime may be indicted either as a first or second offender. If indicted as a second offender, there must be proof before the jury of the first conviction and then the provisions of the , Code as to the sentence of the second offender apply. But if such person- be indicted as a first offender and after conviction the court determines that he has been actually convicted of a prior felony, the court may adjudge him an habitual criminal and he is not entitled to an indeterminate sentence.
    McLaughliit, J., dissented, with opinion.
    Appeal by the defendant, Samuel Rosen, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against the defendant on the 25th day of May, 1910, convicting hixn of the (crime of burglary and also from the indictment.
    
      John P. Judge, for the appellant.
    
      Robert S. Johnstone, Assistant District Attorney, for the respondent.
   Ingraham, P. J.:

The defendant served a notice of appeal “ from the indictment and the judgment of sentencing me to a term of 30 years in States Prison for a crime of burglary, which was rendered against me on May 25th, 1910. * * * That the defendant hereby appeals from each and every part of the said indictment hnd sentence.” No case on appeal seems to have been made and settled, but the record upon which the appeal was presented contains the indictment in the Court of General Sessions of the Peace whereby the appellant and one Kramer were indicted for the crime of burglary in the first degree. It appears from the indorsements on this indictment that on May 20, 1910, the appellant pleaded guilty to burglary in the first degree and on May 25, 1910, he was sentenced to thirty years in the State prison and adjudged an habitual criminal, and under that indorsement appears the initials of a judge of the Court of General Sessions. There are further indorsements on the indictment that the defendant was aged twenty-one and as to his nativity, occupation, etc., and then the following: “before convicted, 1908 General Sessions, Elmira Ref. G. L.,” the letters “ G. L.” presumably relating to. grand larceny. There is then printed an extract from the minutes of the court which is in substance a judgment. It recites that at a Court 'of General Sessions of the Peace of the city and county of New York, on the 25th of May, 1910, present Honorable James T. Malone, Judge of the Court of General Sessions, Justice, wherein “it is ordered and adjudged by the court that the said Samuel Rosen for the felony aforesaid, whereof he is convicted, be imprisoned in the State prison, at hard labor, for the term of thirty years, and the defendant is hereby adjudged an habitual criminal.” There is no other record of the conviction or plea before us. We must assume that these indorsements are correct; that the defendant plead guilty to this indictment; that he was sentenced to the State prison for thirty years, and that the appellant had been before convicted in 1908 at the Court of General Sessions of grand larceny, had been sentenced to the Elmira Reformatory. It is claimed that this j udgment was erroneous, in that the defendant was not indicted as a second offender under the Code of Criminal Procedure, and that not having been indicted as having been before convicted of a felony he could only be sentenced under section 2189 of the Penal Law for an indeterminate sentence. In disposing of this appeal we must assume that the defendant was indicted for the crime of burglary in the first degree with no statement in the indictment that he had been before convicted of a felony; that he plead guilty to that indictment, and that it was established after the plea and before judgment that the defendant had been before convicted of a felony and sentenced to the Elmira Reformatory, and the court thereupon sentenced the defendant to thirty years in State prison and adjudged him to be an habitual criminal.

Article 90 of the Penal Law provides for the punishment to be inflicted upon habitual criminals. Section 1020 provides: Where a person is hereafter convicted of a felony, who has been, before that conviction, convicted in this State, of any other crime, * * "" he may be adjudged by the court, in addition to any other punishment inflicted upon him, to be an habitual criminal.” And section 1021 provides for the supervision of the person of an habitual criminal. These same provisions are contained in the Code of Criminal Procedure, sections 510, 511, 512, 513 and 511, which provide for the supervision and punishment of a person who has been so adjudged. There is nothing in either of these sections as to the method by which it is to be determined whether or not a person so convicted has been before convicted, but these provisions seem to have been taken from the Habitual Criminal Act (Laws of 1873, chap. 357), and the sections of the Code of Criminal Procedure superseded that act. I think we must presume from this record that the court below determined upon sufficient evidence that this defendant had been convicted of a felony prior to his indictment and conviction of the offense of burglary and that he came within these provisions of the Code of Criminal Procedure and the Penal Law as a person convicted of a felony who had been before that conviction convicted in this State of a crime. There is nothing in the sections of the Code of Criminal Procedure or of the Penal Law referred to which requires that this prior conviction should be charged in the indictment. What is required is that after a conviction the court should determine, upon competent legal evidence, that the person convicted of the crime had been before convicted of a crime and then the court was required to adjudge him an habitual criminal, and a person feo convicted thereby became subject to certain supervision by magistrates and others and to summary arrést in certain specified cases. These provisions having been a part of the Penal -Code (§§ 690, 691) and Code of Criminal Procedure {supra), section 1941 of the Penal Law (formerly Penal Code, § 688)-providing for the conviction and punishment of a second offender was enacted. It provides that ■ “ a person, who, after having been convicted within this State, of a felony, or an attempt to commit a felony, or of petit larceny, or, under the laws of any other State, government, or country, of a crime which, if committed within this. State, would be a felony, commits any crime, within this-State, is-punishable upon conviction of such second offense, as follows: ” and then provides the punishment to which a person thus convicted as a second offender is subject. This provision, it seems to me, is entirely distinct from the provisions of section 1020 of • the Penal Law or section 510 of the Code of Criminal Procedure. One provides for the indictment and trial of a person as a second offender, the other for a judgment of the court after the trial of a person indicted and convicted as a first offender but who was subsequently proved to the court to have been before convicted. These two provisions being in existence, by chapter 425 of the Laws of 1901 (adding to Penal Code, § 687a), the provision in relation to indeterminate sentences to State prison was adopted. (Penal Law, § 2189.) It is provided by the Penal Law: “A person never before convicted of a crime punishable by imprisonment- in a State prison, who is convicted in any court in this State.of a felony other than murder first or second degree, and sentenced to a State prison, shall be sentenced thereto under an indeterminate sentence, the minimum of which shall not be less than one year, or in case a minimum is fixed by law, not less than such minimum; otherwise, the minimum of such sentence shall not be more than one-half the longest period and the maximum shall not be more than the longest period fixed by law for which the crime is punishable of which the offender is convicted.” The defendant would have been subject to this provision but for the fact that" the court had adjudged that he had been before convicted of a crime punishable by imprisonment in a State prison. There is nothing in this provision that limits its application to a person convicted as a second offender, and, therefore, in determining the sentence the judge was to ascertain whether or not the person convicted had or had not been before convicted of a crime punishable by imprisonment in a State prison. If he determined that the prisoner had been before convicted of such a crime the provision as to an indeterminate sentence did not apply and the other sections of the Penal Law prescribing the sentence for persons convicted of the crime were applicable. The crime of burglary in the first degree is punishable by imprisonment for not less than ten years (Penal Law, § 407), and the defendant having been before convicted of a crime punishable by imprisonment in a prison was subject to imprisonment for thirty years in a State prison, the sentence prescribed by the court below. (See Penal Law, § 2191.) In the case of a person who had committed a crime he could be indicted either as a first or second offender. If indicted as a second offender there must be proof before the jury of the first conviction (See Code Crim. Proc. § 514a) and then the provisions of the Penal Law fixing the sentence of a second offender applied, or such a person could be indicted as a first offender and after conviction if the court determined that he had been actually convicted of a crime the court was required under section 1020 of the Penal Law and section 510 of the Code of Criminal Procedure to adjudge him an habitual criminal. In that case he would not be entitled to an indeterminate sentence provided for those who had never before been convicted of a crime. This conclusion seems to follow from the express provisions of the Penal Law and the Code of Criminal Procedure to which attention has been called.

It follows that the court below properly sentenced the defendant to thirty years in State prison, and the judgment was, therefore, proper and should be affirmed.

Laughlin, Miller and Dowling, JJ., concurred; McLaughlin, J., dissented.

McLaughlin, J. (dissenting):

The defendant was indicted for the crime of burglary in the first degree, and upon being arraigned he pleaded guilty. Upon his plea, judgment could be pronounced only for the crime charged. Burglary in the first degree is punishable by imprisonment in a State prison “for pot less than ten years,” and may be for life. (Penal Law, §§ 401, 2191.) The punishment here inflicted was imprisonment in a State prison “for the term of thirty years, ” and in addition the defendant was “ adjudged an habitual criminal.”

. It is.claimed that the court was authorized, in addition to inflicting the other punishment, to. adjudge the defendant an habitual criminal under section 510 of the Code of Criminal Procedure, and section 1020 of the. Penal Law, since it appeared that defendant had previously been, convicted of grand larceny. There is no proof in the record of such previous-conviction; but in the brief presented by the learned district attorney a statement is made to the effect that defendant, in answer to certain questions put to him pursuant to the provisions of the statute (Code Grim. Proc. § 485a) admitted it, and there is a statement on the back of the indictment which reads .as f ollows: “Before convicted, 1908 General Sessions, Elmira Eef. G. L.”

But assmning that the defendant did, in answer to certain questions put to him after he had pleaded guilty to the crime charged in the indictment, admit that he had previously been convicted of a felony, such admission did not, in my opinion, authorize the court to adjudge him an habitual criminal or to impose any punishment other than that prescribed for burglary in the first degree. Where it is sought to impose an increased punishment upon a defendant by reason of previous conviction, it is essential that the prior conviction he charged in the indictment and proved upon the trial. It is a necessary fact to he pleaded, since it constitutes a substantial part of the indictment. (Wood v. People, 53 N. Y. 511; Johnson v. People, 55 id. 512; People v. Sickles, 156 id. 541; People ex rel. Cosgriff v. Craig, 195 id. 193; People v. Bretton, 144 App. Div. 282.)

The defendant pleaded guilty to the crime charged in the indictment, and upon this plea judgment could only be imposed for the crime charged as and for a first offense. He could not for a first offense be adjudicated an habitual criminal. Such punishment could only be imposed when there had been a prior conviction. In People v. Sickles (supra) it was held that the prior conviction must not only be charged in the indictment, but proved before the jury on the trial. Judge Gray, who delivered the opinion of the court, said: “I regard it as a necessary and logical conclusion, where an increased punishment is prescribed by the statute upon conviction for a second offense, that the prior conviction enters as an ingredient into the criminality of the prisoner. Not that the fact of the prior conviction tends in anywise to prove the commission of the second offense, but that it aggravates the guilt of the prisoner, and as a hardened or unreformed criminal subjects him to an increased punishment for the repeated crime.”

People v. Bretton (supra) is exactly in point. There the defendant was indicted for the crime of grand larceny in the second degree as a second offense. On being arraigned he pleaded not guilty, but subsequently withdrew this plea and entered a plea of guilty of grand larceny as a first offense. When he was arraigned for sentence it appeared from his answers to questions put to him that he had previously been convicted and sentenced to a State prison, and he was thereupon sentenced to imprisonment for life. It was held that the sentence was not justified, he having pleaded guilty to a crime for which a lesser sentence was provided.

I am of the opinion that the sentence here, in so far as it adjudged the defendant an habitual criminal, was not justified. The judgment, however, may be corrected. Section 543 of the Code of Criminal Procedure provides, “Upon hearing the appeal the appellate court may, in cases where an erroneous judgment has been entered upon a lawful verdict or finding of fact, correct the judgment to conform to the judgment {sic) or finding, ” and that is what should be done in this case. The defendant pleaded guilty to a distinct crime for which a penalty is prescribed, and the judgment should be corrected by striking therefrom so much of it as adjudges the defendant to be an habitual criminal.

Judgment affirmed.  