Opinion
January 30, 1964
Appeal from the Criminal Court of the City of New York, County of New York.
Simeon F. Gross and Elliot S. Gross for appellant.
Frank S. Hogan, District Attorney ( Harold Roland Shapiro and Joseph A. Phillips of counsel), for respondent.
The defendant was convicted of book-making in violation of section 986 of the Penal Law. He was sentenced to pay a fine of $100, or, in lieu thereof, to serve five days' imprisonment, and, in addition, to serve five days in prison. He was tried by one Judge of the Criminal Court of the City of New York, and sentenced by another Judge.
The defendant was specifically charged with accepting two bets from two unknown people for the total sum of $10. He took the stand in his own behalf and testified that he was 66 years of age, the father of 10 children and had never previously been arrested or convicted of crime. He testified that he was steadily employed as a sewing-machine operator and that at the time and place testified to by the police officer, he was in conversation with other people. He denied accepting bets and ultimately testified that at the time of his arrest the police officer requested that he give him $50 as an alternative to the defendant having to pay a lawyer and bondsman and suffer the consequence of an arrest.
Defendant called a fellow worker who testified that he was present at the time of the alleged incident and that he did not hear or observe any bets taken by the defendant. He further testified that he had known the defendant for 10 years and had never seen him accept a bet from anybody.
The defendant's foreman testified that he had known defendant for a period of 3 or 4 years; that he had not seen defendant taking bets on the day in question and that the defendant's reputation in the shop was that of a good, honest and decent worker.
Several questions are raised on appeal which we regard to be without merit. We have affirmed the conviction of the defendant, yielding to time-honored law which requires an appellate court to leave all questions of fact to be decided by the Trial Judge. The rule is well settled that on review of a conviction in a criminal case, the question of reasonable doubt must be left to the trial court, and the verdict, or decision of guilt, will not be disturbed. Where, at the conclusion of a trial, a question of fact remains involving an appraisal by a jury of the credibility of witnesses, it has long been deemed to be incapable of satisfactory solution by a study of the printed record on appeal. The advantages which the jury enjoys, after seeing and hearing the witnesses, their appearance, their demeanor, facial expression, and manner of testifying, is said to give the trial court a greater advantage to determine the quantity and quality of the evidence, and in the absence of any statutory grounds, the determination by the court on a question of fact will be conclusive. An appellate court may not substitute its judgment on the facts for the judgment of the trial court or jury ( People v. Tendetnick, 237 App. Div. 9, 11, 12; People v. Lytton, 257 N.Y. 310; People v. Becker, 215 N.Y. 126, 159; People v. Arata, 255 N.Y. 374, 375).
This court, by this opinion, has modified the sentence originally imposed by reducing it to the time already served [two days]. This decision is by a divided court, one of the Justices dissenting from the modification of the sentence and voting to affirm in all particulars. In dissenting, the minority has seen fit to express his views on the question of punishment and to give his reasons for voting to affirm this sentence. The matter of sentences or punishment and their modification has been a matter of grave concern to this court and it was deemed necessary, in the circumstances, that the views of the majority be expressed. We were particularly concerned that the language of the minority opinion might be interpreted by some as establishing the policy of this court in the matter of sentences. Where warranted, of course, we would have not the slightest hesitancy in revising a sentence, as we would be quick to overrule a judgment of the Small Claims Court which rested wholly on hearsay. (See Levins v. Bucholtz, 208 Misc. 597, affd. 2 A.D.2d 351. )
The barbarities and cruelties of an early day, when society took over the function of revenge on those individuals who broke its laws, in time gave way to the belief that punishment should be imposed as a deterrent. As Judge CARDOZO said in his essay on Law and Literature (Selected Writings of Benjamin Nathan Cardozo, Fall on Publications, 1947, Address before the New York Academy of Medicine, November 1, 1928, p. 379): "Punishment is necessary, indeed, not only to deter the man who is a criminal at heart, who has felt the criminal impulse, who is on the brink of indecision, but also to deter others who in our existing social organization have never felt the criminal impulse and shrink from crime in horror."
But the failure of even the most drastic deterrent of all, the death penalty, indicated that punishment was not the answer. As cutting off the hand of a thief had not deterred him from repeating his crime, so incapacitation by imprisonment failed as a deterrent. Far more effective as a deterrent, from the standpoint of the offender and of society, is rehabilitation. "Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence." ( Williams v. New York, 337 U.S. 241, 248.)
But regardless of the form it takes, reformation and rehabilitation to succeed must first of all take into account the offender. As Franklin Delano Roosevelt said in his book "Looking Forward" some 30 years ago (New York, John Day, 1933): "Every scrap of authentic information from those who have been waging war against crime and criminals, night and day, reveals that there is but one way we can reduce crime. That is through a policy of prevention. * * * If the criminal's past history gives good reason to believe that he is not of the naturally criminal type, that he is capable of real reform and of becoming a useful citizen, there is no doubt that probation, viewed from the selfish standpoint of protection to society alone, is the most efficient method that we have, and yet it is the least appreciated of all our efforts to rid society of the criminal" (pp. 205, 208; emphasis supplied). (See, too, Wickersham Commission, National Commission on Law and Observance, Reports, No. 9, Report on Penal Institutions, Probation and Parole, Washington, Government Printing Office, 1931, p. 173.)
This individualized treatment of offenders must begin with the sentence.
OWEN J. ROBERTS, late Associate Justice of the Supreme Court of the United States, welcomed a group of 37 specially selected Justices to an historic conference, called in April, 1953 by the National Probation and Parole Association, in the City of New York. The outcome of this conference was the formation of an Advisory Council of Judges of the National Probation and Parole Association. In 1957 the council published "Guides for Sentencing", a work of utmost value to the Judges of the Nation's courts in meeting the highly controversial problems of sentencing. And in October of this year, the Advisory Council of Judges of the National Council on Crime and Delinquency published its Model Sentencing Act, a statute designed to conform to the best concepts of modern penology. Section 1 of the act, entitled "Liberal Construction" provides as follows: "This act shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender or shall be committed for a limited period." (Emphasis supplied.) The comment on section 9 entitled "Sentencing for Felonies Generally", quotes the following: "More frequent use of suspension of sentence without probation, like the fine, is part of the answer to the prison problem. The national average use of probation is probably about one-third of felony convictions. Many of our informed students of crime tell us that it can safely be two-thirds, and that public security would not be damaged with that percentage of usage" (p. 361). (Bolitha, J. Laws, Chief Judge, United States District Court, Washington, D.C., Laws, Criminal Courts and Adult Probation, 3 NPPA J. 357-358 [1957].)
It must be noted that the individualized treatment of the offender, as the Supreme Court of the United States observed ( Williams v. New York, 337 U.S. 241, supra), has not "resulted in making the lot of offenders harder. On the contrary a strong motivating force for the changes has been the belief that by careful study of the lives and personalities of convicted offenders many could be less severely punished and restored sooner to complete freedom and useful citizenship. This belief to a large extent has been justified" (p. 249). Particularly apposite so far as the differences between the majority and minority opinions herein, is the language of the Williams case pointing out (p. 246) that "In addition to the historical basis for different evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction." But, quite apart from the rules of evidence applicable to trial procedure and the sentencing process, the court went on to say (pp. 247-248) as to the practice of individualizing punishments: "Undoubtedly the New York statutes emphasize a prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime. People v. Johnson, 252 N.Y. 387, 392, 169 N.E. 619, 621. The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender. This whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions — even for offenses today deemed trivial. Today's philosophy of individualizing sentences makes sharp distinctions for example between first and repeated offenders. Indeterminate sentences the ultimate termination of which are sometimes decided by non-judicial agencies have to a large extent taken the place of the old rigidly fixed punishments. The practice of probation which relies heavily on non-judicial implementation has been accepted as a wise policy." Footnote 10 in Williams v. New York ( supra) at page 248 states: "With respect to this policy in the administration of the Probation Act this Court has said: 'It is necessary to individualize each case, to give that careful, humane and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of a broad discretion.' Burns v. United States, 287 U.S. 216, 220. In Pennsylvania v. Ashe, 302 U.S. 51, 55, this Court further stated: 'For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.' And see Wood and Waite, Crime and Its Treatment, 438-442 (1941)."
It is against the foregoing background that we view the question whether the sentence of the defendant-appellant should be modified. It may be said that to express such care when all there is involved is whether an offender shall serve the remainder of his three-day prison term, but a "mild penal sanction" in the opinion of the minority, is to concern ourselves with a trifle. But the guidelines are the same, whether the sentence be five days or life.
Moreover, we cannot agree that five days or three days is a "mild penal sanction". To so hold offends against the very nature of the sentencing procedure which fits the disposition not to the crime, but to the criminal. There are instances in the lives of every human being where five minutes, or five hours, represents an eternity. Liberty is not so cheap that it can be disregarded lightly. If we fail to meet our duties squarely when we are confronted with what we regard to be a harsh sentence, we are not tempering justice with mercy.
In addition, we must observe that we are dealing not with a felony (where it has been recommended that two thirds of all those convicted be put on probation, supra), but with a misdemeanor. That misdemeanor, it must be emphasized, was of the crime of book-making. The court is well aware of the difficulties of enforcing the gambling laws in this city and elsewhere. But one does not eradicate the evil by a rigid system of punishment whereby every first offender is automatically given a prison sentence of five days. The system is as obsolete as its efficacy is wanting. This court has in proper cases affirmed convictions of sentences of five days where the defendant was shown by the evidence to be a professional or persistent gambler or where the facts indicated he was a large operator in this field. However, this court may not by decisional law give recognition to a formula whereby a five-day mandatory sentence is imposed in every book-making conviction regardless of the offender's needs.
In this connection, in weighing all the factors which led to the imposition of the sentence below, it must be noted that while the Constitution of the United States and the Bill of Rights of this State provide that in all criminal prosecutions the accused shall have the right to a trial by an impartial jury, in the City of New York gambling violations are tried without a jury. In the remainder of the State, nevertheless, gambling violations are tried before a jury. Added to the burden of the gambling defendant, is the fact that he is assigned to trial in the Gambling Part, where nothing but gambling violations are tried. The lot of the Judge assigned to this part is admittedly a difficult one. But if his role is difficult, the task assumed by the sentencing Judge, and the practice has been followed of setting up sentencing parts where convicted gambling defendants are sentenced by Judges other than those who tried such defendants, is most arduous. He must not surrender his sentencing function to any intellectual or emotional biases, to the dictates of any departmental superior or to the demands of public opinion. This separation of the trial from the sentencing function is a practice which can be most prejudicial to defendants and the custom is obviously contrary to modern concepts of penology. The language of the Appellate Division in People v. Georgeadis ( 270 App. Div. 175, 177) is most apt as to the responsibilities of the sentencing Judge: "The courtroom is a tribunal for the administration of justice and its proceedings should be confined to the prompt and decorous dispatch of the business lawfully before it. In imposing sentence the judge should not seek popularity or publicity by critical and irrelevant dissertations or by employing exceptional severity in meting out punishment. 'A judge should adopt the usual and expected method of doing justice, and not seek to be extreme or peculiar in his judgments, or spectacular or sensational in the conduct of the court.' (Canon 21 of the Canons of Judicial Ethics, adopted by the New York State Bar Association, as amended January 22, 1938.)"
But regardless of the "mildness" of the sanction imposed upon the defendant and of the practice followed in the court below, is the authority conferred upon this court to reduce the sentence imposed upon a defendant (Code Crim. Pro., § 543). This statute gives every defendant the right of review of the sentence meted out to him and imposes upon the court the responsibility to determine whether the sentence is harsh and excessive and should be modified. Reluctance to face this responsibility or to circumscribe review "by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial" ( Williams v. New York, supra, p. 247), means that we have failed in this duty. "Under the provisions of section 543 of the Code of Criminal Procedure, this court may modify the judgment imposing sentence; and the power to reduce sentence includes the power to find that a sentence or the execution of sentence should be suspended ( People v. Zuckerman, 5 N.Y.2d 401)." ( People v. Silver, 10 A.D.2d 274, 275; see, also, People v. Speiser, 277 N.Y. 342; People v. Kolodny, 10 A.D.2d 950; People v. Lanza, 10 A.D.2d 315; People v. Dendy, 18 A.D.2d 667; People v. Sugarman, 16 A.D.2d 981; People v. Gondolfo, 16 A.D.2d 834; People v. Gerstenfeld, 14 A.D.2d 517; People v. King, 38 Misc.2d 665; People v. Stewart, 33 Misc.2d 99.)
The language of the Appellate Division in People v. Silver ( supra, p. 276) is pertinent to the instant situation:
"The prime aim of socialized justice, and inherent in its administration in our criminal courts today, is a dispassionate and conscientions evaluation of the unique aspects of the convicted offender's total personality, his intelligence, his character structure, his demonstrated ability to conform, his capacity to accept our social disciplines and limits, and his over-all stability. Such an inventory of his assets and liabilities is indispensable to a judicial determination in selected cases of whether accidental or situational offenders with promising potential can be aided to readjust to a normal life in the community without the disruptive, and sometimes destructive, effects of imprisonment.
"In sum, a sentence must not only encompass the community's condemnation of the defendant's misconduct, but must also evaluate the possibilities of the rehabilitation of the defendant as a useful and responsible member of the community. The point need not be labored that it is, generally, the community's gain whenever a family can be kept together as an integrated and emotionally satisfying unit, with the head of the family meeting his responsibilities to it instead of unnecessarily marking time in jail."
Taking an "inventory of his [defendant's] assets and liabilities" as well as of the nature of the crime of which he stands convicted, an evaluation omitted by the dissenting opinion, we note that the defendant is 66 years of age, in the eventide of life, that he was never before arrested or convicted of crime, that he raised a family of 10 children, that he was charged with accepting bets in the sum of $10, and that he has already served two days in prison. The circumstances indicate, at very best, that defendant was accepting an accommodation bet. The fact, too, that he did go to prison indicates that defendant is not a professional gambler. Moreover, it must be observed that while the police officer testified that defendant had $24 on his person, the records of the Department of Correction show that defendant had in his possession but $1.20 when he was turned over to the department. With this inventory before us, it being noted that there was no probation report used by the court below, we conclude that a suspended sentence would have been in order.
To add another item to the "balance sheet" as to this defendant, the court's examination of the fingerprint records in similar cases discloses that prior to 1960 the punishment was usually a fine and not a prison sentence. In the year 1960 the Legislature enacted section 998 of the Penal Law which prescribes a mandatory sentence of 10 days upon conviction of a second misdemeanor after September 1, 1960. The defendant, it must be repeated, is a first offender. There would appear to be no policy in the lower court to distinguish between first and second offenders (see Williams v. New York, supra, p. 248), other than to follow a formula of sentencing a first offender to one half of the minimum punishment prescribed for a second offender.
Lastly, we must observe that when all the reports have been read, the "profit" to society is the end result sought to be achieved. Society will not gain in this instance, we believe, by the "loss" sought to be inflicted upon the defendant — a return to jail for 3 days some 14 months after his release. Nor do we have any fears that by our disposition the "vehicle of the law will be derailed". While we cannot assure its safe transit, we would not cut short its journey to nisi prius. We make no claim, nevertheless, that the passage we give to the defendant is the expression of perfect reasoning. The imposition of a sentence is necessarily an imperfect thing. It is not a question of law. It is a matter of heart, conscience and duty.
The judgment of conviction should be modified on the facts and in the exercise of discretion, by reducing the sentence to $100 fine or five days, and two days' imprisonment, the time already served, and as modified, the judgment should be affirmed.
I concur in the affirmance of the conviction but I dissent from the modification of the sentence. I would affirm without any qualification for I perceive no sufficient reason therefor.
This court has been hearing appeals from the Criminal Court of the City of New York since September 1, 1962. Even Judges whose experience is exclusively in criminal cases often disagree in outlook. In view of the variant experience of the Justices of this court, it is not unnatural that we would differ in the disposition of criminal appeals, including the matter of sentences. Indeed, as CARDOZO tells us, "in every court there are likely to be as many estimates * * * as there are judges on its bench," and he concludes that "out of the attrition of diverse minds there is beaten something which has a * * * value greater than its component elements."
But even when we fail in unanimity, we do not falter in amiability. For, we share equally the common heritage of the Judaeo-Christian tradition of merciful concern for unfortunates, apotheosized in the appellation "children of the children of mercy." Indeed, we have been instructed that "humaneness and compassion are worth as much as the fulfillment of all the other commandments." (Tosefta, Peha IV, 18.)
A disparity in view of a sentence on appeal reflects, probably, that of the Judges who impose the sentences in the first instance. Milton G. Rector, Director of the National Council on Crime and Delinquency, refers to "the highly controversial problems of sentencing" in this "Foreword" to the "Model Sentencing Act" prepared by the Advisory Council of Judges of Mr. Rector's group. He adds: "The sentencing provisions of the penal law would have to be radically changed if we were to solve the problems facing sentencing courts". And Judge THEODORE B. KNUDSON of the District Court of Minnesota declares: "Sentences have tended to vary materially between different judges because of their varying philosophies with respect to the seriousness of certain types or grades of crime." It is, inevitably, fraught with emotional overtones.
National Conference of State Judges at San Francisco, August 1962. James V. Bennett, the Federal Director of Prisons, offers an almost incredible instance of disparity in sentences. A pair of embezzlers were convicted in adjoining courtrooms, during the same week, in the same courthouse. One was given 30 days and the other was given 15 years! ("Count Down for Judicial Sentencings," 28 J. Bar Assn. of D.D., 420, 424 [1960]).
A lively controversy now agitating legal circles in Kentucky highlights an additional factor complicating the problem of disparate sentences. This is one of the States (about one third in all) where sentencing by the juries obtains in felony cases. Advocating a change in the Rules of Criminal Procedure to provide that this function be confided to Circuit Court Judges, Judge JOHN S. PALMORE — in a recent article in the University of Kentucky Review of Government — stressed that juries did not know what other juries had done in similar cases: "Hence, it is not unusual for one burglar to receive a sentence of two years and his accomplice, tried in the same court, by another jury, to be sentenced to five years or more. As between different courts in different localities the disparity is even more aggravated. For example, in many Kentucky communities no jury has ever given the death penalty in any case, while in others it is a common occurrence." ( New York Times — Sept. 22, 1963.)
"When, as is often the case, there are disparities of sentence, the need for a remedy by way of review or appeal is particularly urgent. Disparities, whether real or apparent, create prison disciplinary problems and in many cases tend to defeat one of the purposes of sentence — the rehabilitation of the defendant as a useful member of society" ("The Administration of Criminal Justice" by Chief Judge J. EDWARD LUMBARD — A.B.A. Journal, September, 1963). See Footnote "6" infra.
If, on occasion, therefore, I have seemed diffident to modify a sentence, it is because certain imponderables appeal strongly to me. In the interest of better understanding, it may be indicated to state them here at some length. It is my fond hope that my view will be understood even if not adopted.
There was no appellate review of sentences at common law. Hence, it is not surprising that in the Federal judicial system, no appellate review of sentences as such obtains. Proposed Federal legislation provides for review only in sentences exceeding five years. Only 11 States provide for appellate review of sentences; the Empire State is among these. That there should be opportunity for review of sentences cannot be gainsaid. Since review is provided in matters of personal rights or property interests, there is no reason why it should be denied in the case of penal sanctions improperly imposed.
See "Appellate Review of Sentences — A Symposium Etc.," 32 F.D.R. 249-321; United States v. Soblen, 301 F.2d 236, 243 (2d Cir. 1962); and cases cited in United States v. Rosenberg, 195 F.2d 604; 109 U. Pa. L. Rev. 422 n. 5, 423 n. 8 (1961). "Appellate Review of Primary Sentencing Decisions: A Connecticut Case Study," 69 Yale L.J. 1453 (1960).
Such nonreview at common law doubtless was an aspect of the "bloodiest code in Europe" — a code which held a roster of several hundred capital offenses and spawned the amoral rule of the admissibility of illegally secured evidence. It is to be regretted that the tenacious, vestigial remains of Defore have survived Mapp and Ker (see People v. Dinan, 11 N.Y.2d 350). The "bloodiest code" was itself part of an "English past . . . full of excess, punitive laws . . . [and] lawlessness" (See "England and America; Climates of Tolerance and Intolerance — 1962" by Herbert J. Hyman).
But the power so conferred on our appellate courts is unique — as a departure from the norm. Its exercise, so instinct with grave responsibility, should be employed with great care. The imperative of judicial self-restraint seems especially controlling, and it is more readily attained by mindfulness of the distinction between power and right — a distinction which is a legal as well as moral one. Regard for law and order involves not only respect for authority, but also mindfulness of the lack of authority. In my view, it is right — lawful — because it is within its competence for the appellate court to review a sentence; but it is not right — nor lawful — for it to revise a sentence merely because it might have decided differently at nisi prius had the appellate Judges been sitting there in judgment in the first instance.
N.Y. Const., art. VI, § 5; Code Crim. Pro., § 543. Since 1907 the English Court of Criminal Appeal has also exercised a power to reduce — as well as to increase — or change the type of punishment imposed.
To repudiate a disposition made below — within the discretionary limits set by the Legislature — in the exercise of the power of review, is not only an unjust condemnation of the action of the Judge who made it, but it also offends against the very nature of the appellate judicial process as I regard it.
Sentencing demands of a Judge the best he possesses in wisdom, experience and insight as a person as well as a minister of justice. There can be no simple or rigid formula; the Legislature has wisely provided for discretion — and flexibility. To be sure, a Judge inevitably carries with him his social and other principles, rarely free from "the empire of subconscious loyalties." But the appellate Judge no less than the Judge at nisi prius is also so burdened.
See "Foreword" by Judge BOLITHA J. LAWS in "Guides for Sentencing." In an article "Sentencing: The Judge's Problem" — Atlantic Monthly, Jan., 1960 — Judge IRVING KAUFMAN says: "If the hundreds of American Judges who sit on criminal cases were polled as to what was the most trying facet of their jobs, the vast majority would certainly answer 'Sentencing.' In no other judicial function is the judge more alone; no other act of his carries greater potentialities for good or evil than the determination of how society will treat its transgressors."
A sentence is not a mere incident of a trial and it is more than a sequel to it — it is "the end for which the first was made" — a component of a jural process imbued with social significance of cosmic importance. If the world was fashioned in the Creator's attribute of love, as Ancient Wisdom tells us, His providence provides for its rule by law — to insure its order. Dean Pound sums it up: "Civilization involves subjection of force to reason, and the agency for this subjection is law." The vehicle of the law should not be derailed unnecessarily.
Relatively equivalent cases should receive relatively equivalent treatment. It is equally important not to treat "unequal things equally;" as Samuel Butler observed: "Nothing is ever precisely like anything else." Moreover, inequity is compounded when there is employed on appeal what has been termed a "hunch" system — an ad hoc rectification of what is considered hardship. We may and should urge a better system of meting out sentences, than now prevails — perhaps "boards of sentencing" or the like. Until such innovation is established, I feel bound in duty to observe the rubrics of what I regard as salutary appellate practice — the guidelines for which are not wanting — even as I am bound in courtesy to honor contrary views.
For a long time, there have been recurrent suggestions that — at least in certain cases — trials be limited to the factum of the commission of the criminal act and that the disposition of the defendant be relegated to commissions — one sort or another, in composition. In "A Monograph on Mental Unsoundness," Francis Wharton — the pioneer penologist — made such a suggestion 100 years ago. Like proposals have been made since. See "Glueck, Report at the Ninth International Prison Congress, Mental Hygiene No. 1;" "Insanity and Criminal Responsibility — Report of Committee of the Institute" — 10 J. Crim. L. and Crime, 184. In 1928, Governor Smith requested the Legislature to enact such a program. Recently, a British student of criminal procedure, in an article in "The Listener" declared that the Trial Judge is, generally, not equipped to handle sentencing and suggests that this matter be placed in the hands of an administrative board composed of a Judge, a Magistrate, a police official, a psychiatrist and a social worker. (See Footnote "1" supra.)
Though we sometimes find it perplexing in their application, we know what the operative principles are. Judge BERGAN'S terse comment in Mann v. Hunt ( 283 App. Div. 140, 141) is a good point of departure: "The point of interference is not fixed in the caprice of judicial individualism". No revision is indicated unless there is "definite and firm conviction that a mistake has been committed." ( United States v. United States Gypsum Co., 333 U.S. 364, 395); and an appellate court may only upset a lower court "reluctantly and only when well persuaded." ( United States v. Aluminum Co. of America, 148 F.2d 416, 433.) Our own court has repeatedly said in civil cases before we passed on criminal appeals, also, that it will interfere with a determination below only when it is manifest that no reasonable man would so hold. It applies to sentences even more!
Unless, therefore, a sentence does violence to our sensibilities — unless "well persuaded" that a reasonable man could not have imposed it, I do not regard an appellate tribunal is free to intervene by revision. So long as the prevailing procedure remains the law — with discretion lodged in a Judge at nisi prius to fix punishment within flexible limits set by the Legislature — the appellate court should be loath to disturb his exercise of discretion. For, if what Judge JEROME FRANK termed "fact-skepticism" is not precisely applicable, "self-skepticism" is apposite; appellate review will find a safe guide in such a mood.
We must cling to the guidelines by which our society lives if the quality of mercy is not to be unduly strained by failing to hold a hard core of intelligibility. If the impulse to compassion is not channeled in the paths of principle, it becomes an excursus in subjectivism — "judicial impressionism" it has been called by the legal philosopher, Geny — it lacks "the quality of educated mercy."
See Judge MURTAGH'S excellent review of "Beyond the Law," by James A. Pike ( Saturday Review — Aug. 7, 1963). The concept of "educated justice" was adumbrated in the scriptural injunction: Justice, justice shalt thou pursue. The categorical imperative enshrined in this directive is that just ends must be secured only by just means. Thus, the Judaeo-Christian tradition absolutely rejects the amoral and corrosive doctrine that the end justifies the means — any means. "Due process" is the legal imperative based on such ethical predicate. The community's equal right to "due process" entails no diminution of the defendant's rights. As the Court of Appeals said in People v. Waterman ( 9 N.Y.2d 561, 564): "The problem is that of achieving a balance between the competing interests of society in the protection of cherished individual rights, on the one hand, and in effective law enforcement and investigation of crime, on the other." It is a fair implication, I think, that when a mild penal sanction has been imposed, well within the discretionary limits fixed by legislative authority, it should not be disturbed when it is agreed that the conviction was justly founded.
In this view, an unduly lenient Judge may not be a truly merciful one. Whether judged by a standard of procedural regularity in the exercise of appellate authority, of juridical pragmatism, or from the high vantage point of ethical imperative, an unwarranted modification of sentences is inadmissible. It results in what Chief Justice HUGHES called in another context, "self-inflicted wounds" on the court. To adapt the summation of another great Judge, such a disposition "is neither good morals, good science nor good law" ("Law as Literature" — Harcourt Brace, New York, 1931 — Cardozo).
We of the Western tradition who accept the boon of free will for ourselves must, when called on to do so, accept the burden, too, of adequately assessing the guilt of others, especially in a time when there seems to be an organized assault on our way of life. In order that law, which embodies the ethos of our society, remain effective, its judgments may not lapse into facile oversimplification. To be pragmatically, as well as morally, sound, judicial action generally, and a disposition in a criminal case, in particular, must reflect the essential nature of the community — its culture, its norms and its ideals.
This does not exclude leniency in a proper case within prescribed authority. But though the divine impulse in action is a constant, the impulse to mercy will vary with individuals because, like other human qualities, however exalted, it is enacted by mortal faculty. As in every other natural phenomenon, then, it must conform to the law of causality. In the law, this is ordered reason.
In the instant case, I do not discern adequate reason for repudiating the action of the court below. I am, therefore, constrained to vote for affirmance without qualification.
GOLD, J., concurs with TILZER, J.; HOFSTADTER, J.P., dissents in part in opinion.
Judgment modified, etc.