Opinion
October 26, 1970
Appeal from a judgment of the County Court of Chemung County, rendered March 14, 1969, convicting defendant upon his plea of guilty of the crime of manslaughter in the first degree. Defendant was indicted by the September, 1968 Grand Jury of Chemung County, and charged with the crime of murder. Defendant was arrested on August 2, 1968 about 4:00 A.M. on a charge of assault in the first degree at his room in a rooming house in the City of Elmira. At that time he was advised of his rights and was not questioned. While being transported from the scene of the crime to the jail, defendant made an unsolicited statement. At about 8:45 A.M. defendant was again given the "Miranda" warnings and was questioned. He thereupon gave an oral confession which was reduced to writing. A "Huntley" hearing was held on the voluntariness of the statements, and the court determined that the People had established beyond a reasonable doubt that the statements were voluntarily made. Thereafter, defendant entered a plea of guilty on a reduced charge of manslaughter in the first degree. Defendant now contends that the People failed to establish the voluntariness of his statements beyond a reasonable doubt and, in support thereof, points to a one and one-half hour delay of arraignment for the purpose of completing the statement, during which period the Recorder's Court was in session. While a delay in arraignment may properly be considered by the hearing court as a relevant factor in determining voluntariness of a defendant's statements, a delay in and of itself is not dispositive of the issue. ( People v. Carbonaro, 21 N.Y.2d 271.) Defendant here was in custody for about six hours before arraignment, and the delay did not actually begin until after he began to confess his guilt. Thus, the delay had no bearing upon the voluntariness of his prior admissions, and should thus be given little weight. ( People v. Carbonaro, supra.) Defendant further contends that the sentence imposed was improper, and did not comply with section 70.00 Penal of the Penal Law in that the court did not sufficiently explain its actions in imposing a minimum sentence of eight years. Section 70.00 (subd. 3, par. [b]) authorizes the court to fix a minimum period of imprisonment where "the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that the ends of justice and best interests of the public require that the court fix a minimum period of imprisonment". This subdivision also requires the court to set forth in the record the reason for its action when a minimum period is fixed. Here, the court, after imposing the sentence stated: "The reason I'm imposing a minimum sentence here is because of the bad record which has previously been referred to by counsel." The record indicates that defendant was 73 years of age and had spent 35 of the past 40 years incarcerated in penal institutions, and had previously been convicted of attempted rape; endangering the life and health of a child; burglary in the third degree, and assault in the second degree. The court sufficiently set forth the reasons for its action in the record as required by section 70.00 Penal of the Penal Law. Judgment affirmed. Herlihy, P.J., Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur.