People v. Daiboch

Glennon, J.

The defendant was indicted for the crime of forgery in the second degree. He entered a plea of guilty in the Court of General Sessions and was sentenced to State prison for a term not less than three years and not more than ten years.

Subsequently, the district attorney of the county of New York filed an information wherein it was charged: “ The said defendant on or about the 25th day of March, 1924, in the Court of Essex Quarter Sessions, County of Essex, State of New Jersey, before Hon. Edwin C. Caffrey, a judge of said Court, was duly by law convicted of the crime of false pretense, sentence suspended and placed on probation for a period of two years.” On January 5, 1933, the defendant was arraigned and the information was read. The record shows that defendant “ stands mute.” As a consequence, he was entitled to a trial on the information. On February 17, 1933, a jury was duly impaneled and sworn.

The evidence offered on the trial indicates that the defendant was indicted in New Jersey on November 27, 1923. It was charged in that indictment that the defendant on the 19th day of September, 1922, “ unlawfully, knowingly and designedly did falsely pretend to the said Mutual Bank of Roseville, that a certain bank check * * * for one thousand dollars, upon the First National Bank of Belleville, New Jersey, was then and there good and that there were then and there sufficient funds in the said First National Bank of Belleville, New Jersey, to meet said check; whereas, in truth and fact * * * there were not then and there sufficient funds in the said the First National Bank of Belleville, New Jersey, to meet said check, as he, the said Abram M. Daiboch then and there well knew.”

On December 3, 1923, defendant entered a plea of not guilty. The trial of the case was adjourned on several occasions during the months of January and February, 1924. On February 19, 1924, defendant retracted his plea of not guilty and entered a plea of non vult. On March 25, 1924, the court suspended sentence and placed the defendant upon probation for a period of two years on condition that defendant pay to the probation officer the sum of twenty-five cents a week for the period of two years. No judgment of conviction appears to have been entered. Whether or not it was the practice in the State of New Jersey to enter a formal judgment we do not know.

The question involved would seem to be comparatively simple at first glance. Section 1941 of the Penal Law reads as follows:

“ § 1941. Punishment for second offense of felony. A person, who, after having been convicted within this State, of a felony, or an attempt to commit a felony, or, under the laws of any other state, government, or country, of a crime which, if committed within this State, would be a felony, commits any felony, within this State, is punishable upon conviction of such second offense as follows: ”

It was the contention of the defendant upon the trial that the plea of non vult in the State of New Jersey was not a conviction of a crime within the meaning of this section. He claimed, and we believe properly so, that there existed a question of fact which the jury was called upon to determine.

In New Jersey a defendant may enter a plea of guilty or not guilty to an indictment in the same manner as an accused may here. He may enter a plea of non vult or non vult contendere with the approval of the court. We have no such form of plea in this State. We are not concerned in the consideration of this case with the meaning of a plea of that type in any commonwealth other than the State of New Jersey. We are not particularly concerned with the construction placed upon a plea of non vult, or, as it is sometimes called, nolo contendere, at common law. In fact, as we shall see hereafter, at least two of the States have construed the effect of such a plea in a totally different manner.

The consideration of-this case should be confined solely to the questions pertaining to issues which were raised by this defendant in his plea of not guilty to the information which charged him with being a second offender. There has been no direct adjudication in the State of New Jersey, so far as we have been able to determine, which holds that a plea of non vult is a conviction in the true sensé of the word. If that be so, it was error for the court to hold as a matter of law that the plea of non vult was a plea of guilty within the meaning of the New Jersey law. In that State, if a defendant has entered a plea of non vult to an indictment, upon a subsequent trial based upon the same facts, inquiry may be made of him concerning the plea, if he elects to become a witness, but only for the purpose of affecting his credibility. However, the record of the plea is not admissible in evidence against him for the purpose of proving the charge. But if a plea of guilty had been entered the evidence of that fact would be admissible and might be sufficient to sustain the charge. (Stewart v. Stewart, 93 N. J. Eq. 1.)

An excellent review of the law pertaining to the matter under discussion is found in Wright v. Wright (98 N. J. Eq. 528, at p. 530). Vice-Chancellor Church said: “In Johnson v. Johnson, 78 N. J. Eq. 507, Chancellor Walker, then vice-chancellor, made a quaere, Can the defendant’s plea of non vult to an indictment for adultery be received as substantive evidence on the issue of adultery in a divorce case, as an admission of the truth of the charge against him, irrespective of the discredit attaching to him as a witness? In that case the chancellor (at p. 512) confined the effect of the defendant’s plea of non vult to the affecting of his credibility as a witness.

“ In the later case of Stewart v. Stewart, 93 N. J. Eq. 1, Chancellor Walker held that a plea of guilty to a charge of adultery in a criminal court is, in a suit for divorce based upon the same adultery, substantive evidence against the party pleading it, and is sufficient to prove the charge and support a decree of divorce.’

He cites State v. Henson, 66 N. J. Law, 601, in which Mr. Justice Van Syckel, speaking for the Court of Errors and Appeals, in treating of the effect of a plea of non vult, observed (at p. 609) that the only difference between that plea and the one of guilty was in the force each had upon collateral proceedings. Judge Vajst Syckel cites Peacock v. Hudson Sessions, 46 N. J. Law, 112. In that case Mr. Justice Reed, speaking for the Supreme Court (at p. 113), observed that the implied confession in a plea of non vult is only for the purpose of the prosecution in the course of which it is entered, while the plea of guilty, in that form, may be used against the defendant in a civil suit, thus indicating that the plea of non vult is not available in a collateral proceeding. This appears to be the decision of the Supreme Court, the Court of Chancery and the Court of Errors and Appeals. This position was also taken in the unreported case of Nixon v. Nixon, memorandum, filed July 15,1921, docket 49/119. The plea of guilty to the offense charged against Mrs. Wright in the criminal court is not evidence of the commission of adultery by her.”

There can be no question about the fact that the trial in the Court of General Sessions was a collateral proceeding in so far as the New Jersey offense was concerned. If so, the plea of non vult which was entered to the indictment in the State of New Jersey was not admissible as substantive evidence upon which a conviction of the appellant as a second offender could rest. We realize that we have no right to take judicial notice of the laws of the State of New Jersey, as to the force and effect which should be given to a plea of non vult. Nevertheless, we believe that a citation of the authorities to which we referred would be helpful for the purpose of throwing some light on the subject.

The appellant claims that he was not convicted in the State of New Jersey of a crime which if committed in this State would be a felony within the meaning of section 1941 of the Penal Law. The only way that that can be determined is by proof of facts which may show what the New Jersey law on the subject really is.

While it was stated in People v. Gowasky (244 N. Y. 451, at p. 464), that “ the only thing that is to be tried before a jury is the identity of the prisoner,” still we must bear in mind that the court there had under consideration a statement of facts which were entirely different from those now presented. Here the appellant does not rest his plea on the question of identity in the sense that he was the person charged in New Jersey with the commission of the offense. He claimed, and still asserts, that he was not convicted of a crime in New Jersey under his plea of non vult.

We are not unmindful of the construction which different States have placed upon a plea of this type. Thus in State v. Suick (195 Wis. 175), by a divided court, it was held in substance that a plea of that nature could be used as the basis of a conviction of an accused as a second offender. On the other hand, in State v. LaRose (71 N. H. 435), Judge Parsons, in a well-reasoned opinion, writing for a unanimous court, said: “It is an elementary rule that a judgment is not evidence of the facts adjudicated by it, except between the parties to it and those in privity with them. But in trespass for assault and battery, a record of conviction upon a plea of guilty to a criminal complaint for the same act is admissible (Green v. Bedell, 48 N. H. 546), while if the conviction be upon a plea of not guilty, the record is not admissible. (Caverno v. Jones, 61 N. H. 623, 624.) The evidentiary force arises, not from the judgment, but from the plea, which, if guilty, is a confession of the truth of the charge, and hence admissible in other proceedings. (Burgess v. Burgess, 47 N. H. 395.) If a plea of nolo contendere has the same effect, it differs in no respect from a plea of guilty. The existence of the two pleas is evidence that there is, or was supposed to be, some distinction between them. That they differ materially appears from the authorities. The distinction is stated as follows: ‘ When the defendant pleads guilty, the clerk writes on the indictment the word “ confesses;” and he is set aside until the time of passing sentence. An implied confession is where, in a case not capital, a defendant does not directly own himself to be guilty, but tacitly admits it by throwing himself on the king’s mercy, and desiring to submit to a small fine which the court may either accept or decline as they think proper. If they grant the request, an entry is made to this effect, that the defendant “ non vult contendere cum domina regina et posuit se in gratiam curice ” without compelling him to a more direct confession. The difference in effect between an implied and an express confession is that after the latter not guilty cannot be pleaded to an action of trespass for the same injury; whereas it may be done at any time after the former.’- (1 Ch. Cr. L. 431; 2 Hawk. P. C. c. 31, s. 3.) Under the plea of nolo, the]defendant does not confess or acknowledge the charge against him as upon a plea of guilty (quod cognovit indictamentum; 2 Hawk. P. C. e. 31, s. 3), but waiving his right to contest the truth of the charge against him submits to punishment. The plea is in the nature of a compromise between the State and the defendant — a matter not of right, but of favor. Various reasons may exist why a defendant conscious of innocence may be willing to forego bis right to make defence if he can be permitted to do so without acknowledging his guilt. Whether in a particular case he should be permitted to do so, is for the court.

“ There is no evidence that any meaning is now attached to the entries ' guilty,’ or that the defendant ‘ will not contend with the State,’ differing from those described by Hawkins and Chitty. Modern cases attach the same meaning. (Commonwealth v. Horton, 9 Pick. 206.) The plea ‘ is an implied confession of guilty only, and cannot be used against the defendant as an admission in any civil suit for the same act. The judgment of conviction follows upon such a plea, as well as upon a plea of guilty. * * * But there is a difference between the two pleas, in that the defendant cannot plead nolo contendere without the leave of the court. If such plea is tendered, the court may accept or decline it in its discretion.’ (Commonwealth v. Ingersoll, 145 Mass. 381, 382.) ‘ This plea, like a demurrer, admits for the purposes of the case all the facts which are well stated, but is not to be used as an admission elsewhere.’ ”

And again: “ If the plea is not competent between different parties because it is only a limited admission of the charge, the admission is not made unlimited by a change of parties. The admission must be one thing or the other when made. Its character at the time determines its meaning, not the use attempted to be afterward made of it. It cannot mean one thing in a subsequent civil suit for damages, and another thing in a subsequent proceeding by the State. The competency of an admission does not depend upon its being made to a party to the suit. If it were an unlimited admission, it would be evidence against the defendant in all subsequent controversies. It is settled by the authorities that it is not. Therefore, there being no ground for an estoppel, the plea can have no greater effect in a proceeding to which the State is a party than in a civil suit, and it is therefore inadmissible against the defendant. If it is claimed that it is improbable that a party would plead nolo and submit to punishment unless conscious of guilt, the argument is no more than can be made in favor of the admission of any proposition for compromise, ‘ because such offers are more apt to be made in cases in which the party making them is conscious that the cause of his adversary is well-founded than in the opposite cases.’ Rideout v. Newton, 17 N. H. 71, 73; Colburn v. Groton, 66 N. H. 151.” (See, also, White v. Creamer, 175 Mass. 567.)

We cite these cases simply to show a diversity of opinion of the courts in different States. What the holding would be in the State of New Jersey if the question was finally submitted, we have thus far been unable to determine. Therefore, we believe that a question of fact was presented which should have been passed upon by the jury.

We have given considerable thought to this case, not only because of the questions involved upon the trial thereof, but also by reason of what transpired at the time the accused entered his plea of guilty to the indictment. It is quite clear that the plea was entered upon the understanding that he would be permitted to withdraw it in the event that it turned out that he was a second offender.

On December 7,1932, in open court the assistant district attorney made the following statement: “ We took a plea, when you were in Part II, in this case. Your Honor told Mr. Bushel, the defendant’s attorney, that if the defendant turned out to be a second offender you would permit him to withdraw his plea and plead to a misdemeanor.”

After the court had denied knowledge that such a statement was made, the assistant district attorney said: “ The District Attorney did. That was understood at that time. I do not know if he is a second offender or not.”

The record which was produced at that time indicated that on February 19, 1924, the defendant pleaded non vult to a charge of drawing a check against insufficient funds. Since there was no notation to indicate that the offense was a felony, it was apparently considered as a misdemeanor. The record also contained a statement that on July 14, 1931, the defendant entered a plea o'f guilty to the charge of misapplying bank funds. The word “ felony ” was used after the description of the offense. In referring to it the court said: “ It is marked felony here.” The assistant district attorney replied: “ Mr. Horan, of our office, says it is a misdemeanor.” After pointing out it was the practice of the office to check up all the matters relating to any prior record of the accused in order to determine if a defendant had previously been convicted of a felony, the assistant district attorney said: “ It is the policy of our office that Mr. Horan check up all the matters. He has all the certified papers, and then they are submitted to Mr. Pilatsky, and he has to determine whether or not a man is a second offender, whether or not the crime set forth is a misdemeanor or a felony; whether or not if committed in this State it would be a felony, and in this case Mr. Horan informs me if the crime was committed in this State, according to Mr. Pilatsky, it would be a misdemeanor. Am I right on that, Mr. Horan? Mr. Horan: Yes. * * * According to our office it is not a felony.”

This would come squarely within the admonition laid down by Judge Crane in the Gowasky case (p. 465). There it was stated: “ Where there is any misunderstanding as to the circumstances under which a plea of guilty was taken, the judge might very well exercise his discretion, permit the pleas to be withdrawn and place the defendant on trial. All of which means that these laws are to be administered fairly on all sides, that they may accomplish the end which the Legislature had in view.”

It is unfortunate indeed that this appellant was not permitted to withdraw his plea because it is quite clear that an agreement to that effect was made. Even though the judge took the position that he did not know of any other “ charge ” against the defendant at the time the agreement was made, still it would have been far better to have resolved any doubt in favor of the accused in order that substantial justice might have been done.

On this phase of the case, it would seem that the original sentence must stand in view of the holding in Matter of Dodd v. Martin (248 N. Y. 394). In that case it was stated: “ The Legislature has provided a mechanistic rule to take the place of the discretionary powers of the judge in passing sentence on second offenders. The Executive may reheve from the hardship of a particular case. . We cannot.”

It may not be amiss to here observe that the Legislature may by appropriate amendment to the laws as presently enacted permit the courts to relieve a defendant from a situation which is patently unjust. The Court of Appeals in its recent decision in People ex rel. Sloane v. Lawes (255 N. Y. 112) has, by judicial interpretation, indicated liberality in this respect.

For the reasons assigned, we are of the opinion that this appellant is entitled to a new trial of the charge contained in the information. The judgment should be reversed and a new trial ordered.

O’Malley and Townley, JJ., concur; Finch, P. J., and Martin, J., dissent and vote for affirmance.