Matter of Lyons v. Goldstein , 290 N.Y. 19 ( 1943 )

On April 17, 1936, the present intervener-appellant appeared in the Court of General Sessions of New York County where he entered a plea of guilty to a charge of burglary in the third degree. Thereupon, as a fourth offender, he received the mandatory sentence of fifteen years to life in a State prison. On July 25, 1941, when he had served more than five years of that sentence he applied at the Court of General Sessions for leave to withdraw his plea made in 1936 of guilty to the charge then made against him and for permission to substitute a plea of not guilty. The ground of his application in 1941 was his assertion that his plea of guilty in 1936 had been induced by fraud and misrepresentation in that he would not have pleaded guilty in 1936 had he not been "promised executive clemency" by an Assistant District Attorney whom he named. He has asserted further that — "If I had not received such a promise, I would undoubtedly have taken my chances upon a trial of the case and would have awaited a judgment of a jury as to whether my conduct was criminal."

In the present proceeding, which is in the nature of prohibition, we are not concerned with the merits of the appellant's application to the Court of General Sessions. Our inquiry involves the single question whether the appellant's application in 1941 to the Court of General Sessions calls for the exercise by that court of unauthorized power. (People exrel. Childs v. Extraordinary Trial Term, 228 N.Y. 463, 468.) Was it within the power of the Court of General Sessions to entertain in 1941 the appellant's application for permission to change his plea of guilty after he had commenced the service of a term of imprisonment which was concededly the judgment of a court which acted within its jurisdiction?

The decision about to be made, as I view it, overrules, without a statement of adequate reason, the decision made by this Court in Matter of Dodd v. Martin (248 N.Y. 394). (See also,People v. Daiboch, 265 N.Y. 125, 131; People ex rel. Woodin v. Ottaway, 247 N.Y. 493, 496; People ex rel. Paris v.Hunt, 234 N.Y. 558; People v. Vitale, 211 App. Div. 814.) No serious effort is made to distinguish Matter of Dodd v.Martin, supra, from the case now before us. Indeed, such an effort, in my opinion, would be unavailing because it will be found, by an examination of the petition in the Martin case, that the question now before us was then presented for decision, at which time the opinion (per POUND, J.) stated (p. 396) "After judgment on a plea of guilty and the beginning of the term of imprisonment the court was without jurisdiction to permit the defendant to change his plea." As authority for that ruling this court cited Code of Criminal Procedure, section 337 and Penal Law, section 2188.

In the past this court has found it necessary to point to the long recognized fact that — "The Code of Criminal Procedure establishes the practice in all criminal cases and the authority for the orders and judgments of the courts." (People ex rel.Hirschberg v. Orange County Court, 271 N.Y. 151, 155.) In making that statement the court cited its prior decision inPeople v. Glen (173 N.Y. 395) where it was said (p. 400) that the provisions of the Code of Criminal Procedure "embody the commands of the law-making power in matters wherein its fiat is supreme and final." By the decision about to be made I think the Court is entering a field for law-making reserved exclusively for the Legislature — a field "wherein its fiat is supreme and final."

In the exercise of its exclusive function to establish the practice in all criminal cases and the authority for the orders and judgments of the courts, the Legislature has dealt with the problem now before us and has expressly provided when and in what circumstances a defendant may withdraw a plea of guilty and substitute a plea of not guilty. Section 337 of the Code of Criminal Procedure provides: "PLEA MAY BE WITHDRAWN BY PERMISSION OF THE COURT. The court may in its discretion, at any timebefore judgment upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted." (Emphasis mine.)

I interpret the statute last quoted above — which formed the basis of the rule in the Martin case, (supra) — as a clear statement by the Legislature of its intent to empower a court, in its discretion, to permit a defendant to withdraw a plea of guilty before the execution of the sentence begins, but nototherwise. That the Legislature, in the interest of the proper administration of criminal law in this State, intended thus to limit the power of the courts where the execution of a sentence has commenced, is made clear when we examine section 470-a of the Code of Criminal Procedure and section 2188 of the Penal Law. The provisions of those statutes relate themselves both to procedure to be followed and the power of the courts when matters are dealt with which involve the suspension of sentence and of the execution of judgment. Section 2188 id. also relates to probation. I find it significant to our present inquiry that at the end of each of those statutes, and after prescribing certain procedure and the extent to which the power of courts may be exercised, the following express limitation upon such power is stated in identical language for each statute: "Provided, however, that the imprisonment directed by the judgment, shall not be suspended or interrupted after such imprisonment shall have commenced."

The jurisdictional limitations made mandatory by the sentence last quoted above demonstrate, in my opinion, the Legislature's purpose consistently to maintain in this State the mandate to be found in section 337 of the Code of Criminal Procedure, which withholds from our courts the power which the appellant now invokes, viz., to permit withdrawal of a plea of guilty after imprisonment has commenced. That a like rule limits the power of Federal courts is made to appear from the opinion by Mr. Chief Justice TAFT in United States v. Murray (275 U.S. 347), where the Supreme Court of the United States, in considering the power of a district court to grant probation, states (p. 358) "The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it." (Citing Matter of Lange, 18 Wall. 163. See, also, UnitedStates v. Mayer, 235 U.S. 55, 70.) Such seems to be the rule in England. (Regina v. Sell [1840] 9 Car. P. 346; 173 Eng. Reprint, 863; The King v. Plummer [1902] 2 K.B. 339.)

It may be that the application of the statute (Code Crim. Pro., § 337) which I believe should control our decision, will work hardship in this instance. But we have said (per LEHMAN, Ch. J.) that — "In practice, inflexible rules of procedure may deny to a person wrongfully convicted any further access to the court. Then his only means of redress is appeal to the executive." (Peopleex rel. Prisament v. Brophy, 287 N.Y. 132, 139.)

For the reasons stated I dissent and vote for affirmance.

LEHMAN, Ch. J., LOUGHRAN and DESMOND, JJ., concur with RIPPEY, J.; LEWIS, J., dissents in opinion in which FINCH and CONWAY, JJ., concur.

Orders reversed, etc.