People ex rel. Makin v. Walter

Bastow, J. This appeal presents the question as to whether a person over 18 years of age who carnally abuses an infant of the age of 10 years (one who has reached the 10th birthday but has not reached the 11th birthday) is guilty of a felony (Penal Law, § 483-a) or a misdemeanor (Penal Law, § 483-b). Chapter 383 of the Laws of 1927 inserted a new section 483-a in the Penal Law making such an act a felony if committed by a male person 18 years of age or over on “ a female child of the age of ten years or under ”. In 1929 section 483-b was inserted in the Penal Law (L. 1929, eh. 684). This made it a misdemeanor (as a first offense) for a male person 18 years or over to commit such an act npon a female child “ over ten years of age and less than sixteen”. By chapters 423 and 424 of the Laws of 1933 both sections were amended to. extend the prohibited acts to all children and not females alone. The chapters also made it a crime for “ any person ” of the age of 18 or over to commit such an act. At the same time section 483-b was amended to define the age group of those upon whom — 498 — the act was committed to be “ of the age of ten years and over and less than sixteen years of age ”. The primary objectives of these 1933 amendments are plain. The reason for changing the language of section 483-b as it related to a child “ over ten years of age ” so that it applied to a child ‘ ‘ of the age of ten years and over ’ ’ is obscure. In 1945 People v. O’Neill (208 Misc. 24) was decided. There defendant had been indicted for two alleged violations of section 483-a (a felony) upon children of the ages of 10 years and 10 months and 10 years and 5 months, respectively. I,t was held that inasmuch as each child was of the age of 10 years and over no indictment could be returned charging a violation of section 483-a; that the words ‘ ‘ ten years or under ’ ’ in that section excluded those who had passed their 10th birthday.' This conclusion was based on Gibson v. People (44 Col. 600) "one of a series of decisions in various jurisdictions (to which reference is hereinafter made) where courts have engaged in an exercise in semantics as to whether a person is ‘ ‘ over ” or ‘ under ’ ’ a certain age based upon a reading of contract or statute without extrinsic aids. Thus, the court in O’Neill concluded that the defendant could only be charged with a misdemeanor. In 1950 the Legislature undertook to remedy this ambiguity. Section 483-b was amended (L. 1950, ch. 292) in the following fashion: “ Any person who carnally abuses the body of a child of over the age of ten years [and over] and less than' sixteen years of age * * * shall be guilty of a misdemeanor ’ ’. (Word italicized inserted; words in brackets omitted.) It must be conceded that more precise language could have been used but, as we shall see, the legislative intent is clear. ‘ ‘ Logically the events occurring immediately prior to the enactment of the statute ought to be a most lucrative source for information indicative of the legislative intent embodied therein. Therefore, the history of the measure during its enactment, that is, during the period from its introduction in the legislature to its enactment, has generally been the first extrinsic aid to which courts have turned in attempting to construe an ambiguous act.” (2 Sutherland Statutory Construction [3d ed.], § 5003.) Thus,-communications sent to the Governor relating to a bill passed by the Legislature and before him for action ‘ ‘ are not conclusive but they are aids in seeking legislative intent.” (DeVille v. Continental Assur Co., 10 A D 2d 386, 390, affd.. 8 N Y 2d 1080.) (See, also, County of Erie v. City of Buffalo, 4 N Y 2d 96,104; Matter of New York Cent. R. R. Co. v. Donnelly, 8 A D 2d 65, 70; Matter of Recreation Lines v. Public Serv. Comm., 7 A D 2d 20, 23.) — 499 — The bill that resulted in the enactment under consideration was introduced by the present Lieutenant Governor (then an Assemblyman). We learn from the contents of the jacket that the bill had been introduced at the request of the District Attorneys’ Association of the State of New York. The then president of that association (now a Justice of the Supreme Court) wrote the Governor that “there is an overlapping during the 10th year of the child’s age.” The proposed amendment was then described and concluded that upon amendment “ the carnal abuse of the body of a child who is ten years of age will be a felony and will only be a misdemeanor when the child is over the age of ten years.” There are five or six other communications in the jacket all of which make clear the intent of the proposed amendment. (See, also, N. Y. State Legis. Ann., 1950, p. 52.) In fairness it should be added that a single memorandum from a'metropolitan Bar Association committee recommended disapproval on the ground that the proposed amendment had not with clarity accomplished its purpose. It is a familiar rule of statutory construction that when the Legislature amends a statute it will be assumed to have knowledge of judicial decisions interpreting the statute as then existing. “ [I]f it deals with it in a manner which does not rebut or overthrow the judicial interpretation it will be regarded as having legislated in the light of and as having accepted such interpretation.” (Orinoco Realty Co. v. Bandler, 233 N. Y. 24, 30.) “ [B]ut an amendment substituting a different term forcefully indicates that the judicial decision did not correspond with legislative intent, and that a different interpretation should be had.” (1 McKinney’s Cons. Laws of N. Y., Statutes, § 193, p. 268, citing James v. Patten, 6 N. Y. 9, 12; Pulitzer v. City of New York, 48 App. Div. 6, 10, 11.) Otherwise stated, “ [w]e must assume that the law-making body intended to effect a material change in the existing law, otherwise the legislation would be nugatory.” (People ex rel. Sheldon v. Board of Appeals of City of N. Y., 234 N. Y. 484, 495.) (See, also, Matter of Smothers, 309 N. Y. 487, 495; Matter of Blatnicky v. Ciancimino, 1 A D 2d 383, 388, affd. 2 N Y 2d 943.) We concede that this amendment to section 483d) could have been stated with greater clarity, as for instance, that carnal abuse of a child who had reached the 11th birthday but had not reached the 16th birthday (cf. Family Ct. Act, § 714) is a misdemeanor. But our search is for legislative intent for certainly the Legislature had some intent in amending the statute. — 500 — Prior to 1950 the companion sections (483-a and 483-b) had contained respectively the words “ ten years and under ” and “ ten years and over.” At least one judicial decision had held that as to the 10-year-old child the crime could be no more than a misdemeanor. It is clear that by the 1950 amendment (ch. 292) the Legislature intended to change this judicial construction so that the crime would be a felony until the child reached its 11th birthday. This was accomplished by amending section 483-b to make it a misdemeanor to commit the act on a child “ over the age of ten years.” The failure of the Legislature at the same time to amend section 483-a is of small significance. It is conceded that all doubt would have been removed if the language of that section (“ ten years or under ”) had been changed to read “ under ten years of age.” But here “ [t]he legislative intent is the great and controlling principle. Literal meanings of words are not to be adhered to or suffered to ‘ defeat the general purpose and manifest policy intended to be promoted ’ ” (People v. Ryan, 274 N. Y. 149, 152). As an abstract legal principle and absent any surrounding facts to shed light on the intent of the Legislature there appears to be a division of opinion in other jurisdictions as to whether a person is “over” a certain age when he has reached a particular anniversary (State of Alaska v. Linn, 363 P. 2d 361; Green v. Patriotic Order Sons of America, 242 N. C. 78) or is not “ over ” a specified age until he has passed the birthday next beyond the specified age. (Wilson v. Mid-Continent Life Ins. Co., 159 Okl. 191; Watson v. Loyal Union Life Assn., 143 Okl. 4) (See, also, 67 C. J. S., p. 541. ) Moreover, there is authority in other jurisdictions that a statute concerning an offense against a child “under” a designated age is not applicable where the child has passed the anniversary of such age. (Gibson v. People, 44 Col. 600, supra; Knott v. Rawlings, 250 Ia. 892.) Thus, it is possible by posing syllogisms to prove by judicial authorities in other jurisdictions that it is no crime in this State to carnally abuse a 10-year-old child. In other words it would not be a felony under section 483-á (“ten years or under”) because as one court states the rule “ [a] child is [10] years of age on the [tenth] anniversary of his birth, and thereafter is over [10] years of age.” (Knott v. Rawlings, supra, p. 897.) On the other hand, if another line of authorities in foreign jurisdictions is accepted, such an act as to a 10-year-old child would not be a misdemeanor. Section 483-b prohibits carnal abuse as to a child “ over the age of ten years.” As — 501 — to this it has been written that “ [a] person is ordinarily not considered over [10] years of age until he arrives at the age of [11]. It may safely be said that it is universally so understood ’ ’ (Watson v. Loyal Union Life Assn., supra, p. 5). We need not tarry over these and similar decisions because here we are not construing a bare statutory or contract provision without extrinsic aid. It is a familiar rule of statutory construction that “ any material change in the language of the original act is presumed to indicate a change in legal rights. The legislature is presumed to know the prior construction of terms in the original act, and an amendment substituting a new term or phrase for one previously construed indicates that the judicial or executive construction of the former term or phrase did not correspond with the legislative intent and a different interpretation should be given the new term or phrase.” (1 Sutherland Statutory Construction [3d ed.], § 1930.) Relator herein was convicted in 1963 upon his plea of guilty to a count in an indictment charging a violation of section 483-a (a felony) in that on December 2, 1962 he carnally abused a child of the age of 10 years. He was sentenced to imprisonment and thereafter sought relief in a habeas corpus proceeding. Therein proof was furnished that on the date of the criminal act the infant was 10 years and 3 months of age. The writ was sustained and relator remanded. The court in granting relief relied on People ex rel. Cooper v. Martin (5 A D 2d 736). Such reliance was misplaced but our reason for this conclusion requires the recital of further legislative history. It appears that in 1950 and for some years prior thereto a special committee had been studying the problem of sex offenders (cf. Public Papers of Governor Dewey, 1950, p. 412). This activity culminated in the enactment of chapter 525 of the Laws of 1950. This chapter contained extensive amendments of several statutes, including the Penal Law, and authorized, as to certain sex offenses, the imposition of an indeterminate sentence of one day to life. Among other sections amended was section 483-b of the Penal Law and in so doing the Legislature (ch. 525, § 12) re-enacted the old language (“of the age of ten years and over ”) in apparent oversight of the amendment made to the section at the same session by chapter 292. (See N. Y. Legis. Ann., 1950, p. 52.) Chapter 292 became a law March 30, 1950 while chapter 525 became a law on April 11, 1950. Thus, from 1950 to 1957 there were two sections 483-b extant — one (chapter 525) containing — 502 — the provision “ of the age of ten years and over ” and the other (chapter 292) setting forth the new language — “ over the age of ten years ”. It was in this posture of the statute that People ex rel. Cooper v. Martin (supra) was decided in 1957. There the court was dealing with an act alleged to have been committed in 1954. The court set forth the two enactments of 1950 and concluded (p. 537) “ that the earlier enactment [ch. 292] was superseded by the latter one [ch. 525] and the language, which in this respect had been in the statute before either of the 1950 amendments and had been enacted first in 1929 (ch. 684) was restored to it.” This court reached the same conclusion upon somewhat similar facts as to an offense alleged to have been committed in 1953. (People ex rel Tesseyman v. Murphy, 8 A D 2d 682.) (Cf. Tesseyman v. State of New York, 21 Misc 2d 534.) But here, as stated, we are considering a crime committed in 1962. Prior to that year the Legislature had again amended section 483-b by chapter 482 of the Laws of 1957. The principal amendment is here immaterial but important is the fact that the enactment recited (§ 1) that section 483-b, as last amended by chapters 292 and 525 of the Laws of 1950, was ‘ ‘ amended to read as follows ”. There follows the language from chapter 292 (“ over the age of ten years ”). This enactment took effect July 1,1957 and thereby the short-lived language of the chapter 292 enactment of 1950 after the lapse of seven years again became the only statutory provision on the subject and the language of the 1929 enactment (“over ten years of age”) was effectively eliminated. It follows that People ex rel. Cooper v. Martin (supra) (relied on by County Court) has no applicability for that decision dealt with a crime committed before the 1957 amendment. We conclude that section 483-a applies to (1) a child 10 years of age and (2) a child under 10 years of age. Section 483-b applies only to a child who has reached its 11th birthday and is less than 16. It is recognized that the words “over” or “ under ” when used in connection with a specified age may be judicially construed with varying results. Similarly, a literal construction of these two sections may well produce a result contrary to that here reached. But such a literal construction must be rejected if “it is evident that a literal construction does not correctly reflect the legislative intent, as indicated by the general purpose and history of the statute and its language, read as a whole and not word by word.” (Matter of Schinasi, 277 N. Y. 252, 259.) — 503 — The order should be reversed, writ dismissed, and relator remanded to the custody of appellant.