Opinion
June 5, 1967
Two judgments of the Supreme Court, Kings County, both dated July 18, 1966, each convicting one of the two respective defendants of petit larceny, on a guilty plea, and sentencing him to an indefinite term in the New York City Penitentiary, reversed, on the law and the facts, and action remitted to the Criminal Term for resentencing in accordance with the memorandum herewith. At the time of sentencing, defendants' counsel called the court's attention to the background and history of each defendant and expressed his certain opinion that they were not capable of rehabilitation. Counsel then requested that defendants be sentenced under the appropriate Penal Law provisions; sentence could thus not exceed one year. The reply was: "The Court makes no observation whatsoever. The Court imposes sentence of the New York City Penitentiary as to both defendants." We believe the court erred in this and we can perceive of no material distinction between the words pronounced here and those uttered by the sentencing Judge in People v. Jemmott ( 26 A.D.2d 937). Our decision there compels a remission of these actions for resentence, at which time the sentencing Judge, if he be disposed to sentence under article 7-A of the Correction Law, may make the required determination as to defendants' capacity for reformation. In cases such as we have presented to us here, it is unrealistic and destructive of the statute's intent to accept a Judge's purposeful evasion of the required finding and equate that with a finding of reformability. Christ, Rabin and Nolan, JJ., concur; Beldock, P.J., and Benjamin, J., dissent and vote to affirm the judgments, with the following memorandum: In our opinion, the statement by the trial court followed by the sentence imposed was tantamount to the imposition of an indeterminate sentence without comment from which a determination of reformability may reasonably be inferred. The statement at bar is distinguishable from that made in People v. Jemmott ( 26 A.D.2d 937), which, in the opinion of the majority of this court, constituted a disclaimer of any finding of reformability.