Opinion
July 13, 1967
Judgment of conviction affirmed. It is not the amount involved that is significant in the sentencing of the defendant, nor is he entitled to any special consideration because part of the sum taken was found concealed on his person and recaptured. The sentence is warranted by the sadistic brutality of the defendant to the victim of the robbery. Defendant's prior record shows a long line of crimes of a similar nature. While, through mistaken compassion or hopes of rehabilitation on the part of the authorities, defendant was able to compromise these charges by pleas to misdemeanors, when he was denied the opportunity to continue this course he elected to stand trial, and the measure of his depravity became evident. His nature was further revealed by an assault on a prison guard after he had been found guilty but before sentence. The trial court committed no abuse of discretion in the sentence.
I would mitigate the sentence by reducing it to an indeterminate term the minimum of which shall not be less than 10 years and the maximum of which shall not be more than 15 years. (Code Crim. Pro, § 543; Penal Law, § 2125.) Without any thought of palliating the guilt of the defendant, nor wish to extenuate the brutality of his crime, I feel the sentence (15-25 years) was excessive. I further think the construction placed on his past criminal record was unduly severe. The excessiveness of the sentence becomes patent when we measure it against the subject of the crime, $48, of which $24 was recaptured; and, no weapon was used in the perpetration of the hold-up. I note also that his codefendant and accomplice in the deed, after pleading guilty to robbery in the second degree, was sentenced to an indeterminate term at the Elmira Reception Center. The disparity between these two sentences is too enormous for comprehension.