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Defendant Contends He was Illegally Detained in Rape Case

A New York Criminal Lawyer said that, in this habeas corpus proceeding, it appears that after a trial by jury, the petitioner was convicted of rape in the first degree (under Subdivision 3 of Section 2010 of the Penal Law) and was sentenced by the County Court of Nassau County to state prison at Sing Sing for an indeterminate term, the minimum of which was to be one day and the maximum was to be for the duration of his natural life. The petitioner contends that he is illegally detained and he urges four grounds in support of his position.

A New York Criminal Lawyer said that, under the first ground, the petitioner contends that since his aforesaid minimum term was for less than one year, the County Judge was authorized and empowered only to order his confinement in a county jail or county penitentiary and that his existing sentence to state prison was illegal and in violation of Sections 2181 and 2183 of the Penal Law. In this Court’s opinion, this contention may not be sustained, for the rule seems clear that with respect to the controversy and issue here presented, an indeterminate sentence is in effect a sentence for the maximum term. And in amplification of this rule, it has been held that since parole is not a right but an act of grace, the Court, in imposing an indeterminate sentence, must have had in mind those provisions of the Correction Law which relate to parole and must be deemed to have sentenced the prisoner to his maximum term, subject to the discretionary power of the

Further, a Manhattan Criminal Lawyer said from a reading of the 1950 amendments to Section 212 and 214 of the Correction Law which were enacted to supplement the 1950 amendment to Section 2010 of the Penal Law, this Court holds that the Legislature clearly intended to authorize and direct the trial judge to sentence a defendant of proper age who had had been convicted of rape in the first degree to a state prison where the board of parole of this State would have jurisdiction over the defendant, including the matter of his release on parole, and which board, in considering the defendant’s release on parole, would have the benefit of reports of physical, mental and psychiatric examinations required to be made at the regular intervals specified by statute.

The issue in this case is whether the sentence is unconstitutional.

A New York City Criminal Lawyer said the petitioner also argues that his aforementioned sentence is illegal because of the provisions of two statutes which he asserts are unconstitutional. He maintains that the alternate form of punishment provided for in the 1950 Amendment to Section 2010 of the Penal Law (wherein the Court may sentence a defendant found guilty of Bacoor in the first degree to a term of not more than 20 years or to an indeterminate term of one day to life) violates the constitutional prohibition against cruel and unusual punishments. He also claims that Section 2189-a of the Penal Law (which provides that a report of a complete psychiatric examination had of a defendant shall be furnished to the Court before such defendant be sentenced to an indeterminate term of one day to life) is unconstitutional in that it fails to direct that a copy of said report be furnished to the defendant or his counsel and also in that it fails to provide that such counsel may then request and have a hearing before the Court in order to controvert the findings contained in such report. In this Court’s view, these contentions are untenable. It is clear that after careful consideration and study, the Legislature in enacting the subject amendment to Section 2010 of the Penal Law, had concluded that the time had come when some comprehensive legislation was necessary which would fulfill the urgent need for treatment for many maladjusted and disturbed individuals convicted of a crime of this nature and at the same time would protect society at large for such period as each case required. So, too, it cannot be reasonably doubted that it is within the power of the Legislature to require that a report as to the defendant’s condition be furnished only to the sentencing judge in order that such judge may determine which of the two forms of sentence (now provided for in Section 2010 of the Penal Law) should be imposed in the case before him.

Turning now to his last point, the petitioner asserts that his conviction of the aforementioned crime was and is contrary to the weight of the evidence in that the proof failed to establish that the complainant’s resistance was prevented by fear of immediate and great bodily harm.

This contention cannot and will not be entertained by this Court. It is a proper subject to be urged only on an appeal which is duly perfected but not in a habeas corpus proceeding.

Accordingly, the application is denied, the writ is dismissed and the relator remanded. Submit order.

If you are in a similar situation, seek the help of a Nassau Rape Attorney and Nassau Criminal Attorney at Stephen Bilkis and Associates in order to handle your day in court.

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