People v. Olah , 300 N.Y. 96 ( 1949 )

Treated by the Court of General Sessions of New York County as a second felony offender, the defendant Olah challenges the validity of the sentence imposed upon him. The Appellate Division, two justices dissenting, upheld it. In this court, the District Attorney, with commendable candor, has expressed agreement with the position taken by the defendant, while the Attorney-General — appearing at the District Attorney's suggestion — has advanced the contrary view.

Section 1941 of the Penal Law provides that a defendant, convicted of a felony in New York, is to be punished as a second felony offender if he was previously "convicted * * * under the laws of any other state * * * of a crime which, if committed within this state, would be a felony". (Emphasis supplied.) The language is plain beyond cavil: defendant is a second offender only if the "crime" of which he was "convicted" in the other jurisdiction would have amounted to a felony here.

In the present case, Olah was convicted in New Jersey following his plea of guilty to an indictment accusing him of having stolen a watch and a wallet containing $200, "all of the value of over Twenty Dollars". He was given a suspended sentence and placed on probation.

Our problem is to determine the "crime" of which he was convicted.

Since an indictment not infrequently contains immaterial and nonessential recitals, we cannot determine the "crime" with which a defendant is charged — and, of course, of which he is convicted — by mere examination of the indictment's allegations. To ascertain that "crime", we must of necessity consider the statute which created and defined it and upon which the indictment was based.

The indictment was founded upon a New Jersey statute which, creating the "crime" of larceny as "a high misdemeanor", defined it as the theft of "Money, or personal goods" having a "value * * * of or above twenty dollars" (N.J. Stat. Ann., § 2:145-2). Since section 1941 of the Penal Law renders vital the "crime" of which a defendant was convicted and since the "crime" in New Jersey was that of stealing $20 or more, it follows that such a crime would not have been a felony in this State — for it is the theft of more than $100 that is here denominated a felony (Penal Law, §§ 1296, 1299).

The circumstance that Olah pleaded guilty to an indictment which recited that the items stolen were worth over $200 is entirely immaterial insofar as section 1941 is concerned. It is the statute upon which the indictment was drawn that necessarily defines and measures the crime. There is a difference between the "crime" of which a defendant was convicted and the "evidence" relied upon to establish that crime. And, by the same token, there is a difference between the "crime" of which he was convicted and the "act" which he may have committed. In other words, the crime, i.e., the operative facts which constitute the criminal offense as defined by the statute, cannot be extended or enlarged by allegations in the indictment or by evidence at the trial. Expressed somewhat differently, facts not specified in the statute upon which the indictment is based may not be rendered material or operative by merely stating them in the indictment — and that is forcefully borne out by the rationale and implications of our holding in People ex rel. Newman v.Foster, 297 N.Y. 27.

In the Newman case, the defendant had committed acts which were a matter of public record, acts which would undoubtedly have been sufficient to subject him to conviction of a felony had he been tried in New York. He was convicted in New Jersey of the crime of carrying a concealed weapon — a felony in this State if he had "been previously convicted of any crime" (Penal Law, § 1897, subd. 5). Since he had been previously convicted at the time he was adjudged guilty of carrying a concealed weapon, his "act", if prosecuted in New York, would have constituted a felony. We held, nevertheless, that the defendant had not been convicted of the "crime" of carrying a concealed weapon after prior conviction because that was not the "crime" charged against him in New Jersey. Accordingly, we concluded, that conviction was not to be counted in considering defendant Newman's status under section 1942 of the Penal Law. The difference between theNewman case and the present one is exceedingly slight. If the New Jersey indictment had alleged — what was indisputable — that Newman had been previously convicted of a crime, that case would have been indistinguishable from the one before us. Yet it is clear from what we wrote in the Newman case that the addition of such a recital in the New Jersey indictment would not have changed the result. The principle implicit in the Newman case is that a "crime" is to be measured and limited by the statute which defines it, and, indeed, that thought was expressed in our opinion. Thus, we not only declared that "the court is restricted to consideration of the operative and material facts" set forth in the indictment (297 N.Y., at p. 30), but, adverting to the possibility of an allegation of some fact or item which was not required by the operative statute, we said (p. 30): "The information, to which relator pleaded guilty in the New Jersey court, alleged only the carrying of a concealed revolver and, indeed, any further recital would have been immaterial,surplusage under the statute." (Emphasis supplied.)

It is self-evident that, under a statute such as the one upon which the indictment against Olah was based, the amount stolen, the value of property taken, is of no consequence whatsoever once a defendant admits that he misappropriated $20. We can test this by supposing that Olah, instead of pleading guilty, had been convicted after trial, his plea of guilty replaced by its equivalent, a jury's verdict. What would that verdict have signified? The prosecution would not have had to prove that Olah had stolen a watch and a wallet containing $200; Olah would not have been entitled to an acquittal if he had stolen less than $200 or even less than $100. (See, e.g., People v. McCallam,103 N.Y. 587; see, also, 2 Bishop, New Criminal Procedure, § 488b, subd. 2.) As the trial court would in such a case instruct, the jury would be warranted in adjudging Olah guilty of the crime charged if it found that he had stolen $20 or more. (See, e.g.,People v. McCallam, supra.) Obviously, then, had there been a trial, the verdict — and the ensuing judgment — would have signified only (1) that Olah had stolen money or property and (2) that the amount involved was at least $20. (See Karameros v.Luther, 279 N.Y. 87, 91; Donahue v. New York Life Ins. Co.,259 N.Y. 98, 102; The Evergreens v. Nunan, 141 F.2d 927, 929.) As this court declared in the Donahue case (259 N.Y., at p. 102): "although a decision, in express terms, professes to affirm a particular fact, yet, if that fact was immaterial to the issue and the controversy did not turn upon it, the decision will not conclude the parties in reference to such fact."

The "crime" of which a defendant is convicted remains the same whether a trial was had or a plea of guilty was entered. A plea simply avoids the necessity and expense of a trial, and a defendant is not to be prejudiced, is not to be placed in a different or worse position, by entering a guilty plea. Once having admitted a theft of at least $20, Olah had no interest in attempting to show that what he stole was valued at less than $200 — for nothing would or could turn on such an evaluation. He did not have in mind the thought or the possibility that section 1941 of the Penal Law of New York State might later be invoked against him or that it might be important to know whether he stole more or less than $100. When prosecuted in New Jersey, he was concerned only with the crime then and there charged against him, and it impresses us as unfair now to construe his plea as an admission that he was guilty of a "crime" more broad than that defined in the statute under which he was convicted.

The indictment against Olah would have been valid and sufficient had it merely charged him with "the theft of a watch, a wallet and United States currency, all of an aggregate value of $20 or more." Concededly, had the indictment been phrased in that way, there would now be no question that defendant could not be considered a second felony offender in this State. The application of section 1941 cannot be made to turn upon the expansiveness of the prosecutor who prepared and drafted the indictment in the other State. One prosecutor may content himself with pleading only essential allegations, while another may choose to include immaterial and surplus recitals. Liberty — even of habitual malefactors — is too important to depend upon the drafting technique or the pleading preference of a particular official.

While there is language in some opinions that it is only the foreign judgment of conviction and the indictment upon which it was predicated that must be considered in applying section 1941, such language must be read in context and in the light of the issues presented. So we have announced on innumerable occasions; typical is this statement from Dougherty v. Equitable LifeAssur. Soc. (266 N.Y. 71, 88): "No opinion is an authority beyond the point actually decided, and no judge can write freely if every sentence is to be taken as a rule of law separate from its association."

No purpose is to be served by treating the several cases which have been called to our attention. It is sufficient to say that this is the first time that the question here posed has ever been raised or considered. In not a single case did this court or — so far as we have been able to ascertain — any other court give thought to the problem. And, certainly, the Court of Appeals never said that a defendant was to be stamped a second or fourth offender on the basis of allegations in an indictment which were uncalled for and immaterial under a foreign statute.

On the contrary, as noted above, our most recent decision —People ex rel. Newman v. Foster (297 N.Y. 27, supra) — strongly suggests just the opposite. In that case, the indictment itself revealed that the "acts" charged against Newman in New Jersey could not have been a felony in this State. Consequently, there was no need or reason to go behind the indictment to perceive that the defendant had not been convicted of a crime that would have here been a felony, and we were not called upon to examine the New Jersey statute. But we were careful to say, first, that "the court is restricted to consideration of the operative and material facts" set forth in the indictment and, second, that any recital in the indictment beyond what was provided in the foreign statute would be "immaterial [and] surplusage" (p. 30). Here was the clearest kind of indication that only allegations of operative and material fact were significant in evaluating the "crime" of which the defendant had been convicted.

A statute must be construed and applied as it is written by the Legislature, not as some judges may believe it should have been written. (See Lawrence Constr. Corp. v. State of New York,293 N.Y. 634, 639.) As it now reads, section 1941 of the Penal Law does not provide that a defendant should be treated as a second felony offender if he did something in another State which might furnish the basis for a felony prosecution in New York or — relating the problem to larceny cases — if he stole an amount which might justify a prosecution for grand larceny in this State. The Legislature, if it is so minded, may amend the statute and make a defendant's second or fourth offender status depend upon some other criterion than the "crime" of which he was convicted, but, until the Legislature does so, the prosecutors and the courts in this State must consider and look only to that "crime."

The orders should be reversed and the matter remitted to the Court of General Sessions, with directions to vacate and set aside the judgment of conviction and to take such further proceedings as may be necessary, not inconsistent with this opinion.