People v. Webster

Miles F. McDonald, District Attorney (Harry Davey of counsel), for motion. J. Jack Brown, opposed. (3) Added section 1943 of the Penal Law which provided a method of charging second and subsequent offenders with previous felonies (L. 1926, ch. 457). (4) Added section 1944 of the Penal Law which mandated increased punishment for the use of weapons in the commission of a crime. (L. 1926, ch. 705.) It is significant that the Crime or Baumes Commission recognized that the courts had discretionary power to suspend these increased mandatory sentences for in its report to the Legislature on February 28, 1927 (N. Y. Legis. Doc. 1927, No. 94) it stated: At page 261 discussing probation: "By section 2188 of the Penal Law as it now stands sentence may not be suspended where crime is punishable by death or life imprisonment. Other atrocious crimes might well be denied probation." At page 77 the commission summarizing its report recommended: "29. That probation be denied to persons who are not suitable for probation, namely, to persons convicted of murder, or of arson, burglary, rape or robbery in the first degree or of kidnapping (except where the person involved is a parent or other relative) or convicted of compulsory prostitution, or if convicted as a second or subsequent offender, or if convicted of a felony while armed with a weapon, or if convicted twice of any of the major misdemeanors mentioned in the Bail Laws, such offenses as possessing burglars' tools, unlawful possession of a pistol, unlawful entry, etc. We also recommend that no person be placed on probation or have sentence suspended who has already been convicted of a felony. In a word, that probation shall be limited to first offenders and to those not guilty of heinous crimes or of crimes associated with professional criminals." (Italics mine.) These quotations from the 1927 report of the Crime Commission indicate a clear legislative recognition that in 1927 the law permitted courts to suspend sentence or the execution thereof on second or subsequent offenders and place such offenders on probation. The following year Assemblyman Esmond, Vice-Chairman of the Crime Commission, introduced "on the recommendation of the Crime Commission" Assembly Bill, Int. No. 182, Print No. 182. That bill repealed old section 2188 of the Penal Law and re-enacted a new section 2188. The pertinent provisions of the proposed new section read as follows:

"§ 2188. Suspending sentence; suspending execution of judgment; probation. The court, judge, justice or magistrate authorized to impose sentence upon conviction may, except as otherwise provided in this section, (1) suspend sentence, or (2) may impose sentence and suspend the execution of the judgment. In either such case he may place the defendant on probation. Neither sentence, nor the execution thereof, shall be suspended, nor the defendant placed on probation (a) if convicted of murder, or (b) of any of the following crimes in the first degree, viz., arson, burglary, rape or robbery, or (c) of kidnapping other than by a parent or other blood relative, or (d) of compulsory prostitution under section twenty-four hundred and sixty, or (e) if the defendant convicted is a second or subsequent offender under sections nineteen hundred and forty-one or nineteen hundred and forty-two, or (f) if the person is convicted of a felony while armed with a weapon as provided in section nineteen hundred and forty-four, or (g) if the defendant is convicted for the second time of any of the misdemeanors or offenses set forth in section five hundred and fifty-two of the code of criminal procedure." (Italics mine.)

That bill was amended by Mr. Esmond in the Codes Committee some weeks after it was introduced (see Assembly Journal, 1928, p. 919) and reported amended Assembly Print No. 1791, as follows:

"§ 2188. Suspending sentence; suspending execution of judgment; probation. The court, judge, justice or magistrate authorized to impose sentence upon conviction may, except as otherwise provided in this section, (1) suspend sentence, or (2) may impose sentence and suspend the execution of the judgment. In either such case he may place the defendant on probation. Neither sentence, nor the execution thereof, shall be suspended, nor the defendant placed on probation (a) if convicted of a crime punishable by death or life imprisonment, or (b) if the defendant convicted is a fourth offender under section nineteen hundred and forty-two, or (c) if the person is convicted of a felony while armed with a weapon as provided in section nineteen hundred and forty-four." (Italics mine.)

It is perfectly clear that the Legislature rejected among others, the proposed limitation on the power of the courts to suspend sentence or execution of sentence on second or third felony offenders pursuant to section 1941 of the Penal Law and retained only the limitation against suspending sentence on fourth offenders under section 1942 of the Penal Law. In this form the bill was passed and became chapter 841 of the Laws of 1928. That section has been continued, with minor amendments not pertinent to the issue involved in this case, up to the present time. I rule on the basis of the legislative history of section 2188 of the Penal Law, that this court has power to suspend sentence or impose sentence and suspend the execution thereof in the case of a second or third felony offender.