People Ex Rel. Gordon v. Ashworth

*287 Finch, J. Both the People of the State of New York and the relator appeal from an order of the Appellate Division which modified an order discharging the relator from custody by directing that he be remanded to the Court of Special Sessions for resentence. The relator pleaded guilty to two separate informations, one the “ unlawful possession of a firearm ” (Penal Law, § 1897) and the other “ unlawfully possessing a habit-forming drug ” (Public Health Law, §§ 423, 440). He was given an indeterminate sentence in the city penitentiary upon each conviction, the terms to run consecutively. Thereafter he served twenty-eight months of imprisonment on the first commitment, due allowance being given for time in jail awaiting trial and for exemplary behavior and industry. He was thereupon deemed released on the first commitment and was then detained under the second commitment. The maximum length of confinement under the second commitment would be a term of thirty-six months from the date of the expiration of his first commitment. After relator had finished serving his time under the first commitment he instituted this habeas corpus proceeding to test the validity of his detention under the second commitment, claiming that a Court of Special Sessions did not have power under the Parole Commission Law (Correction Law, art. 7-A) to make commitments for consecutive, indeterminative terms. The Court at Special Term holding that the imposition of such consecutive sentences was contrary to the provisions of the Parole Commission Law, sustained the writ and discharged the relator from custody. Upon appeal, the Appellate Division reached the conclusion that the relator should not be discharged from custody, but be remanded for resentence upon the second judgment of conviction. We reach the conclusion that the Appellate Division has properly construed the Parole Commission Law. The problem presented is one of construction, whether under the Parole Commission Law there may be a commitment for consecutive terms following conviction upon distinct offenses. The People contend that under the Parole Commission Law the courts of New York have such power. The relator contends that there cannot be two consecutive commitments under the Parole Commission Law upon the ground that no term of commitment under this Law can exceed three years. *288 The. relator would seem to overlook the fact that he has pleaded guilty to two separate and distinct misdemeanors. It is true that the Parole Commission Law does specify that “ The term of such imprisonment * * * shall not exceed three years ” (Correction Law, § 203, subd. b.), but this language obviously refers to the case where a defendant stands convicted of a single crime and does not purport to cover a case where a defendant has been convicted of more than one crime. To urge that the court can under no circumstances order the confinement of an offender guilty of more than one crime for a period which may exceed three years would in effect be urging that a defendant may not be punished for each of the crimes of which he has been found guilty. But we have held otherwise. In People v. Ingber (248 N. Y. 302, 306) we quoted from Tilghmah, C. J., in Russell v. Commonwealth (7 S. & R. 489 [23 Penn. St.]): “‘Would it not be absurd, to make one imprisonment, a punishment for two offences? Nay the absurdity does not end there, for unless imprisonment for the last offence is to begin where the imprisonment for the first ends, it would be impossible, under our system, to punish the offender, in certain cases, for the last offence, at all.’ ” And by statute (Penal Law, § 2190) there is provided discretionary power in the courts to impose consecutive sentences. The Court of Special Sessions is vested with such power to impose consecutive sentences. (People v. Faden, 271 N. Y. 435.) It is true that under the Parole Commission Law, where the prisoner is found capable of being substantially benefited by commitment to a correctional institution, the court may temper punishment with the privilege and possible benefit of reformation. But in providing for possible rehabilitation, the statute contains no language looking towards curtailment of the discretionary power in the courts to impose a penalty for each separate and distinct crime. Since no legislative prohibition against the imposition of cumulative penitentiary sentences is to be found either in the Parole Commission Law or in the Penal Law, the Legislature.presumably intended that the courts should retain this power with regard to imposition of cumulative sentences. Nothing in the Parole Commission Law, therefore, prevented the court from sentencing this defendant upon the second of *289 two crimes after his sentence to the penitentiary upon the first of the crimes has been concluded. It was argued at Special Term that there is incongruity between the maximum sentence of one year for a misdemeanor under the Penal Law and an indeterminate sentence up to three years for a misdemeanor under the Parole Commission Law. While it is true that the Parole Commission has the power of detaining a prisoner for three years if, in its opinion, this continuing treatment may result in his rehabilitation, yet, if he responds, it is also within the discretion of the Parole Commission to release him almost immediately after he has entered the penitentiary. In other words, under the Parole Commission Law, there is no minimum sentence. Where a defendant has committed but one crime, neither the Parole Commission nor the court has any leeway and must release him at the end of three years even though they may well conclude that three years is not an adequate period for reformation. If, however, the prisoner has been convicted of several misdemeanors, the court is empowered to sentence him separately for each crime, but should do so only after he has been brought before the court for sentence after completing his first sentence. If we adopt the construction of the Parole Commission Law, that the imposition of an indeterminate sentence forbids any sentence upon pleas of guilty to unrelated misdemeanors, then we reach the unrealistic conclusion that the punishment for one misdemeanor is made the only punishment possible, not only for two unrelated crimes but for as many misdemeanors as the prisoner may recall and wish to plead guilty to. It is submitted that such a construction, by providing, for one punishment to become a satisfaction for any number of unrelated crimes, removes any deterrent to their commission and, therefore, weighs against this construction being in accord with the intention of the Legislature. It follows that the order appealed from should be affirmed.