People v. Bonano

Per Curiam.

In December, 1958, a multiple count indictment was returned against the defendant. On June 24, 1959 the defendant pleaded guilty to one of the counts — violation of subdivision 1 of section 1751-a of the Penal Law, a misdemeanor. The defendant and his counsel thereupon waived the provisions of section 472 of the Code of Criminal Procedure and defendant was sentenced to an indeterminate term in the city penitentiary. (Correction Law, § 203.) It is conceded that at the time of sentence there was before the court documentary evidence of which the prosecutor had knowledge establishing that the defendant had been convicted in August, 1957 of a violation of the narcotic laws of the State of California.

Subdivision 4 of section 1751-a provides in part that “If at any time, either after sentence or conviction, it shall appear that a person convicted of a misdemeanor under section * * * [1751-a] * * * has previously been convicted of a crime relating to narcotic drugs * # * it shall be the duty of the district attorney * * * to file an information accusing the said person of the previous conviction.” The statute goes on to provide for arraignment and trial before the court of the issue of identity if the defendant denies that he is the same person or remains silent. If identity is established by admission or finding of the court, punishment must be imposed as provided in subdivision 2 of the same section. Therein it is stated that a multiple offender, such as this defendant, “ shall be sentenced * * * for a definite fixed period which shall be not less than six months and not more than one year.”

Upon this appeal two questions are presented. First, did the statutory provision mandate the filing of an information and second, was the court required to impose the definite fixed period specified in the statute % In our opinion both questions must be answered in the affirmative.

The language of the statute under consideration relating to the necessity of the filing of an information is identical with that found in section 1943 of the Penal Law providing, among other things, for the arraignment of alleged multiple felony offenders. In construing the latter section the court in People v. Gowasky (244 N. Y. 451, 465) stated that “ The district attorney is charged with the duty of filing an information accusing the convicted defendant of his previous convictions. This is not discretionary; it is mandatory.”

The requirement in section 1751-a that one previously convicted of a crime relating to narcotic drugs upon conviction of one of the specified misdemeanors should receive a stated fixed sentence was first enacted by chapter 528 of the Laws of 1956, as amended by chapter 817 of the Laws of 1957. At the time the 1956 amendment was under consideration the legislative representative of the City of New York, in a memorandum supporting the measure, quoted the Police Commissioner of the City as having written that ‘ ‘ It has been estimated that it takes a minimum of four months away from drugs under medical supervision to effect any sort of cure. This amendment will make mandatory a minimum sentence of six months on second narcotic misdemeanants.” (N. Y. Legis. Annual, 1956, p. 32.)

Turning to section 203 of the Correction Law, under which sentence was here imposed, we find the provision that “ The court in imposing sentence shall not fix or limit the term of imprisonment of any person sentenced to any such penitentiary.. The term of such imprisonment shall be terminated in the manner prescribed in section two hundred four of this article and not otherwise, and shall not exceed three years. ’ ’ This statutory scheme was considered in People v. Tower (308 N. Y. 123). It-was there written (p. 125) that “ Under the Correction Law the function of the sentencing court is to determine, at the time of sentence, whether or not the defendant is capable of receiving substantial benefit by commitment to a correctional and reformatory institution. If the court concludes, as it did here, that the defendant is so capable, then it must impose an indeterminate term of imprisonment. Nowhere in the statute is authority given to courts to recommend the length of imprisonment at the time of such sentencing and it was improper for the court to have done so here. It is the function of the Parole Commission to determine, in the first instance, when the prisoner is sufficiently rehabilitated or reformed to be fit for return to society (see Correction Law, § 204). The court then, and then only, has power to approve or disapprove that recommendation.”

We are unable to agree with the contention that the Legislature in amending section 1751-a only intended that such definite fixed period of imprisonment should be imposed in the event the court did not sentence under section 203 of the Correction Law. The plain legislative intent was that narcotic recidivists should be sentenced upon conviction of a second or other multiple offense to a term of not less than six months and not more than one year.

The judgment of conviction should be reversed, on the law, and the defendant, in the exercise of discretion, remanded for resentencing.