John E. Dusenbury for defendant.
J. Richmond Page, District Attorney, for plaintiff.
As to the other point raised, there seems to be some conflict in the case law. This was particularly true at the time the defendant was sentenced, but this court now has the benefit of cases which have been decided by higher courts after the sentence in this case; and the rule laid down seems to be that a statute, enacted subsequent to the offenses that increases the punishment, does not govern the punishment but rather the law at the time of commission. The opposite is true if the new enactment reduces the punishment. The Court of Appeals in
People v. Roper (259 N.Y. 170, 180) said: "In the absence of a clause excluding from its provisions offenses previously committed, the law as amended applies in all trials held thereafter, even for offenses previously committed." Our Appellate Division in
People v. Spagnolia (260 App. Div. 551, 552) said: "We have the power to impose the sentence `provided by law' for the crime of which the defendant stands convicted. Undoubtedly, this power was given to us for the purpose of enabling the court to mitigate a sentence which is unduly severe. The Legislature by its amendment of the Penal Law enacted this year, recognized that the punishment previously required to be imposed upon an offender convicted of criminally receiving stolen property was too severe.
We should liberally construe the grant of power to reduce sentence as giving us the right to base the sentence upon the law in force at the time we decide the appeal." (Italics supplied.) In
People ex. rel . Gondelman v. Snyder (259 App. Div. 939) which seems to be controlling in this case, the defendant was first convicted on November 27, 1933, for the crime of robbery second degree, committed April 3, 1932, and given a sentence of five to ten years. On July 28, 1938, defendant pleaded guilty to robbery third degree committed February 6, 1932, and was sentenced for a term of seven years, six months to fifteen years. Defendant argued that under section 1941 of the Penal Law his last sentence was illegal because, having been previously convicted, a determinate sentence should have been pronounced. The court held that since "
both of [defendant's]
crimes were committed before either conviction * * * an
indeterminate sentence was proper in each instance." The defendant should be sentenced to an indeterminate sentence. Prepare order for return of defendant for resentence.