People of the State of New York v. Baker Brief and Appendix for Defendants-Appellants

    To be argued by 
W illiam E. H ellerstein

Court of Apprala
STATE OF NEW YORK

T he P eople of the State of N ew  Y ork,
Respondent,

against

W alter B aker,
D efendant-Appellant.

T he People of the State of New  Y ork,
Respondent,

against

H erbert Gordon,
D efendant-Appellant.

BRIEF AND APPENDIX FOR 
DEFENDANTS-APPELLANTS

W illiam E. H ellerstein 
A nthony F. M arra 

Attorneys for Defendants-Appellants 
100 Centre Street 

New York, New York 10013



T A B L E  O F  C O N T E N T S

PAGE

Preliminary S tatement .........................................................  1

Question Presented ................................................................  2

S tatutes I nvolved ..................................................................... 3

Statement of F acts (B aker) ..............................................  4

S tatement of F acts (Gordon) ............................................  4

A rgument

P oint I—Imposition of consecutive sentences for 
the crimes of unlawful entry and petit larceny 
arising out of a single transaction violated 
Section 1938 of the Penal L a w ..........................  5

Conclusion ....................................................................... 15

A ppendix

Opinion of the Appellate Division, First Depart­
ment, in People v. B aker ...................................... A1



(Enurt nf Appeals
STATE OF NEW YORK

T he People of the State of New  Y ork,
Respondent,

against

W alter B aker,
Defendant-Appellant.

T he P eople of the State of New  Y ork,
Respondent,

against

H erbert Gordon,
Defendant-Appellant.

BRIEF FOR DEFENDANTS-APPELLANTS

Preliminary Statement

Appellants, Walter Baker and Herbert Gordon, appeal 
by permission of the Honorable Kenneth B. Keating, As­
sociate Judge of the Court of Appeals, granted on April 
7,1967, from two separate orders and judgments of the Ap­
pellate Division, First Department,, entered on March 23, 
1967. As to appellant Baker, the order and judgment of 
the Appellate Division affirmed a judgment of the Supreme



2

Court, New York County (Hon. Mitchell D. Schweitzer) 
rendered on April 11, 1966, convicting him, after plea of 
guilty, of the crimes of unlawful entry and petit larceny 
and sentencing him to consecutive terms of one year im­
prisonment for each crime. The opinion of the Appellate 
Division is set forth in the Appendix. As to appellant Gor­
don, the order and judgment of the Appellate Division af­
firmed a judgment of the Supreme Court, New York Comity 
(Hon. Joseph A. Sarafite) rendered on July 18, 1966, con­
victing him, after plea of guilty, of the crimes of unlawful 
entry and petit larceny and sentencing him to consecutive 
one year terms for each crime.*

Timely notices of appeal were filed on April 11, 1967, 
and on April 18, 1967, this Court granted appellants’ mo­
tions to prosecute the appeals on the original records, to 
consolidate the appeals for purposes o f argument and as­
signed Anthony F. Marra and William E. Hellerstein as 
counsel.

Question Presented

Whether imposition of consecutive sentences for the 
crimes of unlawful entry and petit larceny arising out of 
a single transaction constituted multiple punishment in 
violation of Section 1938 of the Penal Law.

* The Appellate Division affirmed Gordon’s appeal without opin­
ion. Justice Steuer concurred “ on constraint of People v. Molinari, 
27 A.D. 2d 705, and People v. Baker, Appeal No. 11131, decided 
simultaneously herewith.”



3

Statutes Involved

New York Penal Law, §1938. Punishment when differ­
ent penalties are provided by different provisions of law

An act or omission which is made criminal and 
punishable in different ways, by different provisions 
of law, may be punished under any one of those pro­
visions, but not under more than one; and a conviction 
of acquittal under one bars a prosecution for the same 
act or omission under any other provision.

New York Penal Law, §405. Unlaivfully entering build­
ing

A  person who, under circumstances or in a manner 
not amounting to a burglary, enters a building, or any 
part thereof, with intent to commit a crime, is guilty 
of a misdemeanor.

New York Penal Law, §406. Punishment for separate 
crime committed in building by burglar

A  person who, having entered a building under 
such circumstances as to constitute burglary in any 
degree, commits any crime therein, is punishable there­
for, as well as for the burglary; and may be prose­
cuted for each crime, separately, or in the same in­
dictment.

¥



4

Statement of Facts (Baker)

Appellant, Walter Baker, was indicted for the crimes 
of burglary in the third degree, attempted grand larceny 
in the first degree and petit larceny. All three charges 
arose out of a single incident that took place on March 7, 
1966, involving the dwelling place of one, Barry Tischler.

On April 11, 1966, represented by Martin Erdmann, 
Esq. of the Legal Aid Society, appellant appeared in Su­
preme Court, New York Comity, before thei Honorable 
Mitchell D. Schweitzer, and offered to enter a plea of guilty 
to the ciimes of unlawful entry and petit larceny, both 
misdemeanors. Accordingly, appellant admitted that on 
March 7, 1966, at about 8:00 p.m., he unlawfully entered 
Tischler’s apartment at 27 West 70th Street with the in­
tent to commit a crime therein and that he did, in fact, 
steal some personal property belonging to the complain­
ant (MP. 2). The court accepted the plea (MP. 3).

After appellant waived his right to forty-eight hours’ 
notice prior to sentencing, the case was recalled and Jus­
tice Schweitzer imposed a sentence of one year in the New 
York City Penitentiaiy for each of the two misdemeanors, 
the sentences to run consecutively (MS. 2).

Statement of Facts (Gordon)

By indictment filed on May 26, 1966, appellant, Herbert 
Gordon, was charged with the crimes of burglary in the 
third degree, attempted grand larceny in the first degree, 
petit larceny and possession of burglar’s tools. All counts



5

of the indictment emanated from appellant’s unlawful 
presence in the premises of one, Rosalie Cacioppo, on May 
9, 1966.

On July 18, 1966, represented by Martin Erdmann, Esq. 
of The Legal Aid Society, appellant entered a plea of 
guilty to the crimes of unlawful entry and petit larceny. 
He acknowledged that on May 9, 1966, he entered the apart­
ment of Rosalie Cacioppo at 40 MacDougal Street and took 
certain property from that apartment (R. 2).

After Justice Sarafite accepted the plea, appellant re­
quested immediate imposition of judgment and was sen­
tenced to two consecutive one-year terms in the New York 
City Penitentiary (R. 4, 7).

A R G U M E N T  

P O I N T  I

Imposition of consecutive sentences for the crimes 
of unlawful entry and petit larceny arising out of a 
single transaction violated Section 1938 of the Penal 
Law.

Both appellants were unlawfully given consecutive one- 
year terms for the crimes of unlawful entry and petit lar­
ceny because, in each case, both crimes were committed 
as part of a single transaction in which the petit larceny 
was nothing more than a consummation of the criminal 
intent that constituted an essential element of the unlaw­
ful entry. P. L. §405.



6

Section 1938 of the Penal Law provides that,

“ An act or omission which is made criminal and 
punishable in different ways by different provisions 
of law, may be punished under any one of those pro­
visions, but not under more than one; . . . ”

In enacting this provision, the Legislature recognized 
the inherent unfairness of permitting a defendant to be 
sentenced more than once merely because his conduct vio­
lated more than one penal statute.

In People ex rel. Maurer v. Jackson, 2 N.Y. 2d 259 
(1957) this Court recognized that Section 1938 was not 
merely a prohibition against multiple punishment in the 
case of lesser included crimes but also that,

“ . . . if there were merely a single inseparable act 
violative of more than one statute, or if there were an 
act which itself violated one statute and was a mate­
rial element of the violation of another, there would 
have to be single punishment.”  (Italics in original) 
(15 N.Y. 2d at 264)

The Maurer opinion also stated, however,

. . that if separate and distinct acts were com­
mitted, and that they violated more than one section 
of the Penal Law, punishment for each of them would 
be proper although they arose out of a single trans­
action.”  (15 N.Y. 2d at 264)

Judge Tilzer, writing for the Court below, placed the 
instant cases into this latter category of “ separate and 
distinct acts”  and then proceeded to make appellant’s po­
sition contingent on the Court’s willingness to adopt the



7

“ intent and objective”  test as developed by tbe California 
Supreme Court under a statute identical with our Section 
1938. Neal v. State, 55 Cal. 2d 11, 237 P. 2d 839 (1960), 
cert, den’d, 365 U. S. 823 (1961); People v. McFarla/nd, 58 
Cal. 2d 748, 376 P. 2d 449 (1962); Cal. Pen. Code $654.

In so characterizing tbe cases at bar, tbe Court below 
was in error because tbe crimes of unlawful entry and petit 
larceny, as committed herein, fall not into tbe category of 
“ separate and distinct acts”  but into tbe category de­
scribed in Maurer as “ an act wliicb itself violated one stat­
ute and was a material element of tbe violation of an­
other” . As such, the crimes for which appellants were 
convicted were not proper subjects for multiple punish­
ment.

Section 405 of the Penal Law defines one who commits 
an unlawful entry as “ a person who, under circumstances 
or in a manner not amounting to a burglary, enters a build­
ing, or any part thereof, with intent to commit a crime. 
. . . ”  Thus, a mere entry without an intent to commit 
a crime in the premises does not constitute unlawful entry. 
People v. Seaman, 21 A.D. 2d 907 (2d Dept., 1964); People 
v. Boettcher, 20 A.D. 2d 801 (2d Dept., 1964); People v. 
Hamilton, 18 A.D. 2d 871 (4th Dept., 1963).

As to the element of intent, therefore, the crime of un­
lawful entry does not differ from that of burglary which 
requires a breaking and entry “ with intent to commit a 
crime therein”  [P. L. $404]; and as concerns the latter, 
this Court has already noted that prior to legislative 
change by Sections 404 and 406 of the Penal Law, consecu­



8

tive punishment was not permitted because the larceny 
represented “ the consummation of the felonious intent, 
which constitutes an element of the alleged burglary.”  
People v. Snyder, 241 N.Y. 81, 83 (1925). Similarly, in the 
absence of legislative change, the petit larceny that occurs 
immediately upon the unlawful entry, as is the case here, 
represents nothing more than the consummation of the in­
tent that constitutes an element of the unlawful entry. 
Thus, in terms of the Maurer standard, the petit larceny 
committed herein was an act “ which itself violated one 
statute [P. L. §1298] and “ was a material element of the 
violation of another”  [P. L. §405]. Cf. Smyth v. Morrison, 
200 Va. 728, 107 S.E. 2d 430, 435 (1959); People v. Cheeks, 
16 A.D. 2d 742 (4th Dept., 1962).

Viewed in this context, there is nothing aberrational 
about the Fourth Department’s decision in People v. Kel­
ley, 25 A.D. 2d 715 (4th Dept., 1966). In that case, the de­
fendant pleaded guilty, as here, to unlawful entry and petit 
larceny. In holding imposition of consecutive one-year 
terms to violate Section 1938 as well as the language in 
Maurer, the Court stated that, ‘ ‘ the plea admitted the facts 
which established that both crimes arose out of a single 
transaction motivated by a continuing intent to commit 
larceny.”  In stressing the continuing-intent factor we be­
lieve the Court was addressing itself to the fact that the 
intent required for the unlawful entry is inextricably in­
tertwined with the commission of the petit larceny, there­
by precluding multiple punishment. Cf. People v. Allen, 
266 App. Div. 670 (2d Dept., 1943). Had it wished to adopt 
the California rale, we believe the Court would have so 
stated.



9

This, then is not a case where the offenses charged 
“ constitute different crimes the commission of which re­
quires separate and different criminal acts”  and where the 
gravamen of each is “ different in law and in fact.”  People 
ex rel. Poster v. Jackson, 303 N.Y. 680 (1951). Here, the 
unlawful entry and the petit larceny committed in the prem­
ises were interwoven as matter of law and their gravamen 
was singular. The illegal act of entry was not the grava­
men of the unlawful entry. It was the intent to commit an­
other crime in the premises that was at the heart of the
offense. See, Irby v. United States,------F. 2d —— (D. C.
Cir. 3/15/67) [slip opinion, p. 9].

In the case of burglary and crimes committed in the 
premises, consecutive sentences became possible only by 
virtue of a specially enacted statute that carved an excep­
tion out of Section 1938’s prohibition against multiple pun­
ishment. P.L. §406. And in providing that “ a person,”  
who, having entered a building under such circumstances 
as to constitute burglary in any degree, commits a crime 
therein [P.L. §406] could be punished for both, the Legis­
lature could not have been more specific. As unlawful en­
try does not “ constitute burglary in any degree,”  Section 
406 is inapplicable. To hold otherwise would be to impose 
a construction upon Section 406 far beyond the intendment 
of the Legislature and would violate the well-established 
principle that additional criminality is not to be attributed 
to a person except upon a clear and unambiguous mandate 
from the Legislature. United States v. Universal C. I. T. 
Credit Corp. 344 U. S. 218, 221, 222 (1952); People ex rel. 
Dawkins v. Frost, 58 Misc. 618, 620 (Kings Co. Ct. 1908) ; 
Cf. People v. McCall, 16 A.D. 2d 313, 316 (4th Dept., 1962).



1 0

Although the Legislature is free, of course, to provide 
for separate punishment in the situation presented by the 
instant cases [People v. Snyder, supra, 241 N.Y. at 83], it 
has not seen fit to do so.*

While we maintain that the California “ intent and ob­
jective”  test, which can also be found in People v. Sava- 
rese, 1 Misc. 2d 305, 326 (Sup. Ct. Kings Co., 1952), need 
not be resorted to in order for appellants to prevail on this 
appeal, such a test, or rule, commends itself to this Court 
as both an intelligent construction of Section 1938 and as 
a matter of sound policy and thus furnishes an alternate 
basis for reversal.

In People v. Savarese, supra, 1 Misc. 2d 305, Judge Sohel 
believed that Section 1938 required an examination of the 
intent and objective of the defendant because he reasoned 
that,

“ Although our statute (Penal Law, §1938) speaks 
of “ an act”  we know that few if any crimes are com­
mitted by a single act. A  crime unless it is a crime of 
omission results from a series of acts or a transaction 
motivated by a criminal intent. The true factual test 
is “ Were all of the acts performed necessary to or 
incidental to the commission of a single crime and mo­
tivated by an intent to commit that crime?”  (Italics in 
original.) (1 Misc. 2d at 326)

See, also, People v. Repola, 280 App. Div. 735, 739 (1st 
Dept., 1952), a ff’d 305 N.Y. 740 (1953); People v. Florio, 
301 N.Y. 46, 54 (1950).

* It is also important to note that the predecessors of Sections 
1938, 405 and 406 were all enacted together in the Penal Code of 
1881. (Former Penal Code §§677, 505 and 506 respectively, L. 
1881, c. 676.) The Legislature’s failure to include unlawful entry 
in the predecessor of Section 406 or in a similar statute had to be 
intentional.



1 1

While issue has been taken with the rale as stated in 
Savarese [People v. Zipkin, 202 Misc. 552 (Monroe Co. Ct. 
1952)] this Court’s language in People ex rel. Jackson v. 
Maurer, supra, 2 N.Y. 2d 259, was read by the California 
Supreme Court to comport more with the Savarese analy­
sis than with those cases disputing it. People v. McFar­
land, supra, 58 Cal. 2d 748, 376 P. 2d 449, 456.

In McFarland, the California Supreme Court reiterated 
the interpretation of its multiple punishment prohibition 
statute previously stated by Judge Traynor in Neal v. 
State, supra, 55 Cal. 2d 11, 357 P. 2d 839. In Neal, Judge 
Traynor wrote that,

“ Whether a course of criminal conduct is divisible 
and therefore gives rise to more than one act within 
the meaning of Section 654 depends on the intent and 
objective of the actor. I f all of the offenses were inci­
dent to one objective, the defendant may be punished 
for any one of such offenses but not for more than 
one.”  (357 P. 2d at 844)

It was in Neal that Judge Traynor also analyzed the 
rationale underlying California’s Section 1938-type statute:

“ The purpose of the protection against multiple 
punishment is to insure that the defendant’s punish­
ment will be commensurate with his criminal liability.”  
(357 P. 2d at 844)

We believe that same rationale underlies our own stat­
ute and that when it is applied to the instant cases, its 
soundness becomes self-evident. This is so because the 
crimes of unlawful entiy and petit larceny as committed by 
appellants were connected together by a single intent and



12

objective, that of entering the premises for the purpose of 
stealing property. There was no separate intent to enter 
and then to steal. The theft was the sole reason for the 
entry. To impose punishment for both crimes thus ex­
ceeds the criminal liability of these appellants. This is 
made especially clear by observing that separate punish­
ment would have no deterrent effect in the instant situation 
because the actor does not, when contemplating the crime, 
divide his actions into unlawfully entering the premises and 
then committing a crime therein. He enters for the sole 
purpose of committing a crime and thus does not contem­
plate one without the other. Consequently, threat of pun­
ishment for the second “ act”  is not a factor.

We do not believe this Court has ever rejected the “ in­
tent and objective test”  described in Savarese and adopted 
by the California Supreme Court.* Indeed, the McFar­
land Court thought that Maurer comported more with its 
own rule because,

“  there is considerable language in the opinion that 
whether two crimes are committed with the same or 
different intent is of great importance (140 N. E. 2d 
at 285-286).”  (376 P. 2d at 456)

* In People v. DiLapo, 14 N.Y. 2d 170 (1964) [cited by the Court 
below] the People argued that the attempted robbery was the de­
fendant’s breaking into the house with intent to steal and that his 
shooting of the victim was a later, separate act with a separate intent, 
an intent to kill. Thus, it was held by this Court that punishment 
for assault with intent to kill after punishment for the attempted 
robbery had been imposed did not violate Section 1938. It was clear 
that there was more than a singular intent or objective present. 
Compare, People v. Scaglia, 17 N.Y. 2d 484 (1965) ; People v. 
Birmingham, 16 N.Y. 2d 984 (1965). The same holds true of the 
other cases cited by the Court below. People v. Black, 18 A.D. 2d 
719 (2d Dept. 1962) [victim struck by defendant after he had sur­
rendered his money] ; People ex rel. Eldard v. La Vallee, 15 A.D. 
2d 611 (3d Dept. 1961) [defendant assaulted two deputy sheriffs 
with a metal bar].



13

The Court, in McFarland, further pointed out that re­
cent decisions of the United States Supreme Court had 
emphasized the importance of the intent and objective fac­
tor in construing federal statutes for purposes of multiple 
punishment. See, Prince v. United States, 354 U. S. 322
(1957) ; Heflin v. United States, 358 U. S. 415 (1959); 
Milcmovicli v. United States, 365 U. S. 551 (1961). The 
Court also observed that the Supreme Court has been in­
clined, over recent years, to follow a policy of lenity in 
cases where statutes were unclear as to multiple punish­
ment, citing, Ladner v. United States, 358 U. S. 169, 177
(1958) and Bell v. United States, 349 U. S. 81, 83, 84 (1955); 
People v. McFarland, supra, 376 P. 2d 455-457. Although 
Judge Schauer, in his dissent in McFarland, disputed the 
existence of such a policy, the District of Columbia Circuit 
has recently concurred in the belief that such a policy is a
reality. Irby v. United States, supra,------ F. 2d ------- (D.C.
Cir. 3/15/67) [slip opinion, p. 4].

A  policy of lenity on the issue of multiple punishment 
is also consistent with that expressed by our own Legisla­
ture in Section 70.25(3) of the Revised Penal Law which 
specifically prohibits the imposition of a total of more than 
one year’s imprisonment even where consecutive sentences 
arising out of a single incident or transaction are permitted 
under Section 1938.

Thus, in holding unlawful the imposition of consecutive 
sentences in a situation similar to that of the cases at bar, 
the Court in McFarland ruled that,

“ The record contains nothing indicating that he 
[the defendant] entered the hospital with intent to



14

commit some crime other than theft. In these circum­
stances the only reasonable conclusion is that the entry 
of the hospital and the taking of the air compressor 
were parts of a continuous course of conduct and were 
motivated by one objective, theft; the burglary, al­
though complete before the theft was committed was 
incident to and a means of perpetrating the theft.” * 
(376 P. 2d at 457)

Consequently, the “ intent and objective”  rule also re­
quires a reversal in the instant cases.

The fact that appellants pleaded guilty to unlawful en­
try and petit larceny in satisfaction of indictments charg­
ing them with burglary and other crimes in no way legalizes 
the sentences imposed if they be otherwise unlawful. Since 
they pleaded to a crime not charged in the indictment, “ the 
plea does not presuppose the truth of the facts pleaded in 
the indictment.”  People v. Griffin, 7 N. Y. 2d 511, 515 
(1960); People v. Ayiotis, 23 A. D. 2d 760 (2d Dept. 1965); 
People v. Smith, 24 A. D. 2d 761 (2d Dept. 1965). Thus, 
there is no basis in law that permits of the assumption that 
appellants committed crimes more serious than unlawful 
entiy and petit larceny.

Nor can there be a “ hypothetical”  sentence because a 
plea is entered in the sense that there can be a ‘ ‘hypotheti­
cal”  crime such as attempted manslaughter. E.g. People 
v. Foster, 19 N. Y. 2d 150 (1967). In the latter instance, the 
defendant has merely acceded to the characterization of 
the crime by the court for which a lawful sentence can be 
computed. Where a defendant pleads, however, to crimes

* California does not have a statute similar to Section 406 of 
our Penal Law.



15

which have statutorily-prescribed sentences, the defendant 
cannot accede to the court’s imposition of a sentence that 
exceeds the limits of such a statute for the court lacks 
power to impose a sentence other than the one prescribed 
by law. Similarly, he cannot accede to the court’s violation 
of Section 1938 which, itself, regulates the type of sentence 
that can be imposed in a given category of cases.

Conclusion

For the above stated reasons the order and judg' 
ment of the Court below should be reversed.

Respectfully submitted,

W illiam E. H ellerstein 
A nthony F. M arra 

Attorneys for Defendants-Appellants



Appendix

Opinion of the Appellate Division, First Department, 
in People v. Baker

SUPREME COURT 
A ppellate D ivision 

First Department, January 1967

A eon S teuee, J. P.,
L ouis J. Capozzoli,
Geoege T ilzeb,
James B. M. M cNally, JJ.

11131

T he P eople of the S tate of N ew  Y oek,
Respondent,

vs.

W alteb B akeb,
Defendant-Appellant.

Appeal from judgment of the Supreme Court, New York 
County (Schweitzer, J.), rendered April 11, 1966, con­
victing defendant on his plea of guilty of Unlawfully 
Entering and Petit Larceny.

William E. Hellerstein of counsel (Anthony F. Marra, 
attorney) for appellant.

Lewis R. Friedman of counsel (Michael Juviler with 
him on the brief; Frank S. Hogan, District Attor­
ney) for respondent.



A2

Appendix

Tilzer, J .:

The appellant interposed a plea of guilty to the charges 
of Unlawful Entry and Petit Larceny on April 11, 1966. 
The indictment charged the defendant with the crimes of 
Burglary in the Third Degree (first count), Attempted 
Grand Larceny in the First Degree and Petit Larceny. 
The proceeding before the Court was as follows:

(Discussion off the record at the bench between the As­
sistant District Attorney, defendant’s attorney, and the 
Court.)

(The defendant Avas duly arraigned.)
Defendant’s attorney: May it please the Court, the de­

fendant, Walter Baker, requests permission to plead guilty 
to the misdemeanor of unlawful entry, under the first count 
of the indictment, and the misdemeanor of petit larceny, 
the third count of the indictment, said plea to cover all 
counts of the indictment.

Assistant District Attorney: The People respectfully 
recommend acceptance of that plea, your Honor.

The Court: Walter Baker, do you Avish to plead guilty 
to the tAvo misdemeanors as offered on your behalf by your 
lawyer?

The Defendant: Yes.
The Court: By your pleas of guilty, do you admit that 

on March 7, 1966, at about eight o ’clock in the evening, you 
unlawfully broke into and entered apartment 2B, at prem­
ises 27 West 70th Street, in New York County, with the in­
tent to commit a crime therein and did, in fact, steal some 
personal property belonging to Barry Tischler? Do you 
admit those acts?



A3

The Defendant: I admit the attempted burglary.
Defendant’s Attorney: He is not discussing that.
(Defendant’s attorney confers with defendant.)
The Defendant: Yes.
The Court: Do you admit those acts, sir?
The Defendant : Yes.
The Court: Which constitute the two crimes to which 

you have offered to plead guilty to?
The Defendant: Yes.
The Court: Now, has anyone given you any kind of an 

indication as to what sentence I would impose upon you, in 
order to induce you to plead guilty to these crimes? Has 
anyone made any promise to you of any kind?

The Defendant: No, sir.
The Court: Take the plea.
The Clerk: Walter Baker, do you plead guilty to the 

crime of unlawfully entering a building, a misdemeanor, 
under the first count, and petit larceny, a misdemeanor, the 
third count, both said pleas to cover the indictment? Are 
they your pleas?

The Defendant: Yes.
(The defendant was duly sworn and pedigreed.)
The Clerk: Date of sentence, Judge?
The Court: Do you wish to be sentenced today? Do 

you waive your two days’ notice?
The Defendant: Yes.
The Court: Second call for sentence.
(Whereupon, a recess was taken in the above proceed­

ings.)
After the recess the following occurred:

Appendix



A4

The Court: No. 27, Walter Baker.
[The defendant is arraigned at the bar.]
The Clerk: Is your name Walter Baker?
The Defendant: Yes, sir.
The Clerk: Your attorney * * * is present in court.
Baker, do you waive your right to two days’ time before 

sentence ?
The Defendant: Yes.
The Clerk: Defendant’s attorney.
Defendant’s Attorney: Here, again, the defendant was 

afforded consideration in being permitted to plead guilty 
to two misdemeanors. I ask Your Honor to deal with him 
as leniently as possible.

The Court: On each count, Penitentiary, one year, said 
sentences to run consecutively and not concurrently.

Please advise him of his right to appeal.
[Off-the-record conference between defendant’s attor­

ney and the defendant.]
Defendant’s Attorney: I have advised the defendant of 

his right to appeal and the procedure.
The Court: Remand the defendant.

Raised on this appeal is whether the sentences consti­
tuted double punishment for a single act in violation of 
Penal Law Section 1938 and whether consecutive sentences 
under these facts are precluded by Penal Law Section 406.

Section 1938 of the Penal Law provides as follows:

“ An act or omission which is made criminal and 
punishable in different ways, by different provisions 
of law, may be punished under any one of these pro­
visions, but not under more than one.”

Appendix



A5

The Court of Appeals in People ex rel. Maurer v. Jack- 
son, 2 N. Y. 2d 259, formulated standards testing the va­
lidity of consecutive sentencing under Section 1938:

“ It is clear that if separate and distinct acts were 
committed, and that they violated more than one sec­
tion of the Penal Law, punishment for each of them 
would he proper although they arose out of a single 
transaction (cases cited). It is also not open to dis­
pute that if there were merely a single inseparable act 
violative of more than one statute, or if there were an 
act which itself violated one statute and was a material 
element of the violation of another, there would have 
to be single punishment (cases cited).

#  *  #

“ We recognize that Section 1938 is not by its terms 
limited to included crimes, although it is clear that the 
statute will there apply; if, however, the acts are 
separable, it will not apply.”  (at pp. 264, 265,—italics 
in original).

The statute (Section 1938) and the Court of Appeals in 
Jackson make it clear that in determining the applicability 
of Section 1938 we must direct our attention to the acts 
committed by the defendant. The defendant, as aforesaid, 
admitted not only the act of breaking, of unlawful entry, 
but also a separate act of stealing Tischler’s personal prop­
erty. “ * * * [T]he test is not whether the criminal intent 
is one and the same and inspiring the whole transaction, 
but whether separate acts have been committed with the 
requisite criminal intent * * *”  (Morgan v. Devine, 237 
U. S. 632, 640 (1914).)

Appendix



A6

The test applied by the Appellate Division, Fourth De­
partment, to Section 1938, on the other hand, looks to the 
motivating force of the transaction to determine whether 
“ separate and distinct acts were committed”  (People v. 
Kelley, 25 AD 2d 715 (1966)). The Kelley procedure which 
looks to the intent and objective of the criminal, is the in­
terpretation which the highest court of California has 
given to its statute, Penal Code Section 654, which is simi­
lar to our Section 1938:

“ Few if any crimes, however, are the result of a 
single physical act. ‘ Section 654 has been applied not 
only where there was but one act in the ordinary sense 
* * * but also where a course of conduct violated more 
than one statute and the problem was whether it com­
prised a divisible transaction which could be punished 
under more than one statute within the meaning of 
Section 654.’ * # *

“ Whether a course of criminal conduct is divisible 
and therefore gives rise to more than one act within 
the meaning of Section 654 depends on the intent and 
objective of the actor. I f all of the offenses were in­
cident to one objective, the defendant may be punished 
for any one of such offenses but not for more than 
one.”  (Neal v. State of California, 55 Cal. 2d 11, 357 
P 2d 839, 843-4 (1960) (Emphasis added), cert, de­
nied 365 U. S. 823.)

The Supreme Court of California has not been unani­
mous in applying the “ intent and objective test.”  One who 
lias vigorously dissented has been Justice Schauer, to whom 
the writer is indebted for a wide-ranging review of the ‘ ‘ in­
tent and objective test.”  Justice Schauer suggests that:

Appendix



A7

“ The majority in Neal apparently took their for­
mulation of this ‘ test’ from a suggestion of a New 
York inferior court judge in People v. Savarese (1952 
Misc.), 1 Misc. 2d 305, 114 N.Y.S. 2d 816, 835-836 [15] 
(cited in Neal at p. 19 [18] of 55 Cal.2d, 9 Cal. Rptr. 
at p. 611, 357 P.2d at p. 843). That decision, however, 
has been criticized in the courts of New York (People 
v. Zipkin (1952, Misc.), 202 Misc. 552, 118 N.Y.S. 2d 
697, 698-699), and no subsequent decision of the New 
York Court of Appeals has been found adopting the 
suggested rule. New York has a statute materially 
similar to Penal Code section 654 and upon which our 
provision was originally based (N.Y. Penal Law, Sec­
tion 1938); yet the highest court of that state contin­
ues to interpret and apply it in the light of the prin­
ciples summarized in People v. Jackson (1957), supra,
2 N.Y. 2d 259, 264, * * *”  (People v. McFarland, 58 
Cal. 2d 748, 376 P. 2d 449, Schauer, J. dissenting, 376 
P. 2d 464-477, at p. 469.)

As Justice Schauer noted, the courts of this State, with 
the exception perhaps of the Fourth Department, have re­
fused to follow People v. Savarese, 1 Misc. 2d 305. The 
Fourth Department, for that matter, in a case decided some 
years before Kelley, People v. McCall, 16 AD 2d 313 (1962), 
held that:

“ The act of possessing a hypodermic syringe in 
violation of section 1747-d and the act of possessing 
narcotic drugs in violation of section 1751-a are sepa­
rate acts separately punishable, even though they may 
be committed at the same time and with the same over­
all general purpose of administering narcotics to one­
self. The defendant could therefore have been sepa­
rately punished for each of the misdemeanors of which 
he was convicted in 1959. The fact that the court hap­

Appendix



A8

pened to have imposed concurrent sentences for the 
two violations is immaterial; under the Maurer case, 
the court could have imposed consecutive sentences, if 
it had wished to do so. # # *”  (at p. 318)

See also People v. Black, 18 A  D 2d 719 (2nd Dept. 1962); 
People ex rel. Eldard v. LaVallee, 15 A  D 2d 611 (3rd 
Dept. 1961); People v. Zipkin, 202 Misc. 552 (Monroe 
Comity Court 1952). In People v. Repola, 280 App. Div. 
735, affd. 305 N.Y. 742, this Court held that “ The factual 
occurrences in this case disclose that the possession of 
heroin was only in connection with the sale and included in 
it. There could, no doubt, have been a possession of the 
drag apart from the sale and a sale distinct from a pos­
session, but we have no such situation here.”  (at p. 739) 
And in People v. DiLapo, 14 N Y 2d 170 (1964), where the 
Court of Appeals refused to consider the defendant’s “ in­
tent” , it was held that “ It is not impossible to say that 
there were separate acts or elements making out, sepa­
rately, assault with intent to kill and attempted robbery, 
and that double punishment was, therefore, permissible. ”  
(at p. 174)

Judge Bergan in his dissent in the last cited case, recog­
nizing that the “ test of what is the same ‘ act’ made pun­
ishable in ‘ different’ ways is not always clear,”  observed 
that a criterion that might be used in applying Section 1938

“ is a recognizable differential in the time sequence— 
one thing done before the next thing starts.

“ This was the standard set in People v. Snyder 
{supra) [241 N. Y. 81] which treated the breaking into 
the chicken coop as a burglary separate from the lar­
ceny thereafter committed in stealing 30 chickens (pp. 
82,83).”  (at p. 175)

Appendix



A9

Here the defendant unlawfully entered, not a chicken 
coop, but the dwelling house of Barry Tischler. Up to this 
point the act of the defendant constituted one crime (sec­
tion 405 Penal Law). The act of the defendant committed 
thereafter, in stealing a television set of the value of $75 
from Barry Tischler, constituted a second crime. Each is 
subject to separate punishment. Section 1938, it is true, 
does not permit of easy application. A  simple test is most 
difficult to devise. The best guide nevertheless, as the 
Court of Appeals indicated in the Jackson case, supra, 2 
N. Y. 2d 259, 265, is an analysis of the acts involved. Each 
case must be resolved on its own facts.

The defendant, in his attorney's words on sentence, was 
“ afforded consideration in being permitted to plead guilty 
to two misdemeanors.”  Such consideration was fully ap­
preciated by the defendant, he having been given the oppor­
tunity of pleading to two misdemeanors, one in connection 
with the burglary charge as to which he was permitted to 
plead to unlawful entry, and the other to petty larceny to 
cover not only this count but the second count as well charg­
ing grand larceny in the first degree. Moreover, as his 
counsel well knew, great leniency was shown defendant in 
the circumstances, for having theretofore been convicted of 
two felonies, upon a third felony conviction he would have 
received a very severe sentence instead of the two years 
actually imposed (on the burglary alone, five to twenty 
years). I must add, with Justice Schauer, that such sen­
tences should be reviewed on appeal in a light most favor­
able to the express or implied finding of the trier of the 
facts (People v. McFarland, supra, 376 P. 2d at 468). Re­
view too should take cognizance o f the overcrowded condi­

Appendix



A10

tion of our jails, of the fact that it is humanly impossible to 
try every defendant indicted for a crime and of the benefits 
flowing from the procedure followed by the court below—a 
trial was avoided, the defendant’s sentence was reduced 
considerably, thus affecting the future population of our 
jails, and the prosecutor was free to turn to another case 
in the mounting volume of crime.

Finally, I  believe it is an indication of the invalidity of 
this appeal that the very counsel who was successful in his 
request that defendant he permitted to plead to unlawful 
entry rather than burglary as to the first count, would util­
ize the regard shown his client as the basis for reversal. 
Section 406 of the Penal Law provides that a person who 
enters a building under such circumstances as to constitute 
burglary and who commits a crime therein, is punishable 
for the crime as well as for the burglary. Defendant argues 
that Section 406 is a narrowly carved out exception to Sec­
tion 1938 and that unless one has committed a burglary he 
cannot he punished separately for two offenses arising out 
of the same transaction. He points out that unlawful entry 
is specifically defined (Penal Law section 405) as an entry 
“ not amounting to a burglary” . Nevertheless, as shown 
above, “ if separate and distinct acts were committed, and 
* * * they violated more than one section of the Penal Law, 
punishment for each of them would he proper although 
they arose out of a single transaction”  (People ex rel. 
Maurer v. Jackson, supra, 2 N. Y. 2d 259, 264). We have 
held these consecutive sentences to be valid in People v. 
Molinari, 27 A. D. 2d 705 (1967).

The judgment should he affirmed.
All concur. Steuer, J. concurs on constraint of People 

v. Molinari, supra.

Appendix



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