Opinion
May, 1935.
Appeal from Supreme Court, Clinton County.
Relator has appealed from an order of the Special Term dismissing a writ of habeas corpus issued in his behalf. On March 28, 1929, he was convicted of the crime of robbery in the second degree in the County Court of Erie county. After his conviction and before sentence the district attorney filed an information against him charging him with four previous felony convictions which he admitted. Thereupon the court sentenced him to imprisonment for the term of his natural life, pursuant to the provisions of section 1942 of the Penal Law. In this proceeding relator challenges the validity of two of these convictions, viz., a conviction in the Cayuga County Court on October 21, 1919, of the crime of assault, second degree; and a conviction for burglary in a court of record at Pittstown, Penn., on May 8, 1912. Sometime subsequently to the imposition of the sentence on October 21, 1919, it was suspended. A suspended sentence may not be the basis for a fourth offender conviction. ( People ex rel. Marcley v. Lawes, 254 N.Y. 249.) Relator's criticism of the Pennsylvania conviction is that after serving a part of his sentence he was pardoned. Hence he contends it should be eliminated from consideration. The pardon did not obliterate the record of his conviction or blot out the fact that he had been convicted. ( People v. Carlesi, 154 App. Div. 481; affd., 208 N.Y. 547; affd., 233 U.S. 51; People ex rel. Malstrom v. Kaiser, 135 Misc. 67; affd., 228 App. Div. 743.)
There were thus three valid convictions and the sentence imposed was proper.
Order affirmed.
Hill, P.J., Crapser, Bliss and Heffernan, JJ., concur; McNamee, J., dissents, with a memorandum.
The relator is about forty years of age, and an electrician by trade. He is confined in the State prison at Dannemora, under sentence, and has no attorney. He has sued out a writ of habeas corpus and is conducting this appeal in his own behalf. As might be fairly expected the record is not artfully prepared. However, the substantial facts are not disputed. In March, 1929, he was convicted of robbery in the second degree and sentenced to State prison for the remainder of his life. The basis for this life sentence, of necessity, was at least three previous convictions for felony. In May, 1912, he was convicted of burglary in Pennsylvania; in April, 1919, he was convicted of criminally receiving stolen goods in Lockport; in May, 1919, he was convicted of robbery, second degree, in New York; and in October, 1919, he was convicted of assault in the second degree in Auburn.
For the offense in Pennsylvania, he was pardoned by the Governor of that State while serving his sentence in April, 1915; and upon the conviction for assault in 1919, sentence was suspended.
Although the suspension of sentence does not prevent an appeal from a judgment of conviction (Code Crim. Proc. § 517), and although one may be convicted as a second offender after sentence has been suspended upon a conviction of a previous offense (Code Crim. Proc. § 470-b), a previous conviction, when sentence has been suspended, cannot constitute any part of the basis of a sentence to life imprisonment as a fourth offender. ( People ex rel. Marcley v. Lawes, 254 N.Y. 249.) In the case of a suspended sentence both the direct and indirect consequences of the conviction are temporarily or indefinitely postponed ( Marcley Case, supra), while in the case of a pardon those consequences are definitely and permanently removed. I am unable to accept the principle that a result which is temporary, indefinite and incomplete has greater virtue to protect the accused than that which is permanent, definite and complete. By analogy, the part is never greater than the whole. And to say that a suspended sentence may be imposed at a later time is rather an empty formula; because those who have had substantial experience in criminal matters know that imposition of such a sentence very rarely follows a suspension, and then only on account of an added offense.
The two cases cited by the majority, in my judgment, have no application here, in view of the Marcley case; because they had to do with second offenders only, and in no way involved fourth offenders. It was precisely that distinction which was pointed out so clearly in the Marcley case. A pardon should be effective to prevent one becoming a fourth offender in any circumstances where a suspended sentence will have that effect.
The order should be reversed, and the prisoner remanded for proper sentence.