Matter of Snitkin v. Taylor

Crane, Ch. J. One Billy Tarver, on the 29th day of April, 1936, was indicted for murder in the first degree. Two indictments were found against him: one, numbered 208734, for having killed one Trozzo; another, numbered 208735, for having killed one Holloway. It appears that the crime was committed in a saloon fight in the city of New York, borough of Manhattan, in which the defendant and his brother caused the death of the two victims named. It was one occurrence. Billy Tarver, being without funds, the Court of General Sessions assigned him three counsel, petitioners herein. Thereafter Billy Tarver, on the 16th day of June, 1936, pleaded guilty to manslaughter under indictment 208734, and was sentenced on the 26th day of June, 1936, for a term of from six to twelve years in a State prison. This ended indictment 208734, and the charge of “ murder in the first degree ” thereunder, for having killed Trozzo. Thereupon the Court of General Sessions made two orders, apparently under section 308 of the Code of Criminal Procedure, allowing counsel $1,000 for their services in the case known as indictment for murder in the first degree, No. 208734, in which the plea of manslaughter had been taken for the killing of Trozzo. The court also made another order giving the same counsel $1,000 for services in indictment 208735, in which the charge was murder in the first degree for killing Holloway, although there is no proof to show that this indictment has been disposed of in any way known to the law. Under section 308 of the Code of Criminal Procedure the court is without power to make any allowance until the defendant has been tried or the action or indictment is otherwise disposed of. The proceeding or action must be terminated, at an end, and in a way which is legal and recognized by law. Any agreement or statement of *151 the court or District Attorney that the defendant will not be prosecuted thereafter is insufficient. A criminal action is terminated by a verdict of not guilty, by a conviction or a plea of guilty and judgment entered thereon, or else by an order of the court dismissing the indictment. So long as the indictment is outstanding, undisposed of by a formal order of the court, there is no jurisdiction or power to make counsel an allowance. There is nothing in the papers in this record to show that indictment No. 208735, the Holloway indictment, has ever been dismissed. The petition in this case asking for allowances simply states that on June 16, 1936, the defendant pleaded guilty (one plea) to the crime of manslaughter. The recital in the judge’s order making the allowance is: “ The defendant pleaded guilty to indictment No. 208734, Calendar No. 73416, to the crime of manslaughter in the first degree, to cover also Indictment No. 208735, Calendar No. 73415.” What this means I do not know. No such language is used or justified by the Code of Criminal Procedure. Does this mean that the defendant also pleaded guilty to manslaughter in the first degree for having killed Holloway? Certainly not, because it is conceded that he only entered one plea of manslaughter and was sentenced on only one plea of manslaughter, and that for having killed Trozzo. This language which I have quoted apparently means that, having pleaded guilty to one indictment, the District Attorney would not prosecute the other; that the plea in the one case was sufficient. But this did not dispose legally of indictment 208735 which, so far as this record shows, has never been dismissed. We have not the indictment before us, but there is not one statement in the record that the plea on that indictment has been “ guilty of manslaughter in the first degree,” or of any sentence imposed by the court; neither is there any statement that that indictment has been dismissed. Until these facts appear the Court of General Sessions had no power or jurisdiction *152 to make any allowance for the disposition of indictment No. 208735, the Holloway indictment. All the parties apparently have treated the fracas or the saloon row, which resulted in the killing of Trozzo and Holloway, as one crime, and the plea to one indictment as being sufficient punishment for the one crime. Should the District Attorney or his successor move for trial the indictment 208735 (Holloway) no doubt the trial would be stayed, or the promise of the District Attorney not to prosecute enforced, by reason of the plea to indictment 208734. The Court of General Sessions would probably be justified in then dismissing indictment 208735; but, until this be done, the court is without power to make any allowance in the case of No. 208735. We have heretofore recognized the right of the Comptroller to reject these claims for counsel fee and expenses in criminal cases when they were not justified by statute. (People ex rel. Van Doren v. Prendergast, 214 N. Y. 16; People ex rel. Perry v. Berry, 250 N. Y. 452; Matter of Reilly v. Berry, 250 N. Y. 456.) There is another reason why this allowance in indictment 208735 was illegal on its face. The crime committed by Billy Tarver was perpetrated at the same place, in the same room and at the same time and on the same date, in the same fracas, and resulted in the death of the two men, Trozzo and Holloway. Two indictments were found simply because there were two dead men. These petitioners were assigned to defend Billy Tarver. The cases were treated as one, for it appears in the record that a plea of guilty to manslaughter in the first degree was taken on indictment 208734, the Trozzo indictment, “ to cover also indictment No. 208735.” The defendant was sentenced as for one crime only, and the plea was taken in but one case and the services, so far as this record shows, were rendered only in the one case. Section 308 of the Code of Criminal Procedure was intended to protect the treasury of the city, and, therefore, *153 placed a limit upon the amount which might be given to a lawyer for defending a murder case. The limit was $1,000, and yet in this instance the court below has attempted to make it $2,000 for the services rendered in one case, namely, the Trozzo case. There were no services rendered in the Hollaway case, indictment 208735, except as they were identically the same acts and services performed in the Trozzo case. The petitioners have apparently been allowed $2,000 for the same services, the same acts, when the limit is $1,000. This is a mere gift of the city’s money, unauthorized by law, even contrary to the Constitution of the State of New York. The statute itself has not remained unchallenged upon constitutional grounds. (People ex rel. Acritelli v. Grout, 87 App. Div. 193; affd., 177 N. Y. 587.) In People v. Heiselbets (30 App. Div. 199) the court attempted to make a full allowance to each of two assigned counsel. This was held to be illegal and beyond the power of the court. It may be noted that both Judge Bartlett and Judge Cullen were members of the Appellate Division in this case. Judge Cullen there said: “I agree with Mr. Justice Bartlett, that there is no authority for an appeal to this division from the certificate of the justice presiding at the trial awarding compensation to counsel. If the award is in excess of the amount allowed by law, the comptroller should refuse payment and resist any proceedings taken to enforce it.” The Comptroller has made such resistance in this case. While the facts are not the same in the Heiselbets case as in the present one before us, the principle to be applied is the same, for in this case counsel are to be paid in full twice for the same identical services. Whereas the statute limits the amount to $1,000, they have been given $2,000. The lack of power and jurisdiction in the court to make this second order in indictment 208735 is clear and appears from the mere recital of the facts as taken from the record. The judge by an order in' indictment 208734 made a full *154 allowance to counsel of $1,000 for all the services rendered upon the plea of guilty. He had no power to give an additional $1,000 in the other indictment for apparently the same services. I, therefore, hold: First. That the court was without jurisdiction to make the allowance in indictment 208735, as it nowhere appears in the record that the indictment has been disposed of in any way known to the law, that is, by a judgment or a dismissal of the indictment. Second. That the court had no jurisdiction to allow $2,000 for the same services. The order should be affirmed, without costs.