United States of America Ex Rel. Grady Smith, Petitioner-Appellant v. Hon. Edward M. Fay, Warden of Green Haven State Prison, Stormville, New York, 409 F.2d 564, 2d Cir. (1969)

409 F.
2d 564
UNITED STATES of America ex rel. Grady

SMITH,Petitioner-Appellant,
v.
Hon. Edward M. FAY, Warden of Green Haven State Prison,
Stormville, New York, Respondent-Appellee.
No. 420, Docket 29686.
United States Court of Appeals Second Circuit.

Argued March 6, 1969.
Decided March 12, 1969.
Gretchen White Oberman, New York City (Milton Adler, New York City,
on the brief), for petitioner-appellant.
Mortimer Sattler, New York City (Louis J. Lefkowitz, Atty. Gen. of State
of New York, and Samuel A. Hirschowitz, First Asst. Atty. Gen., on the
brief), for respondent-appellee.
Before LUMBARD, Chief Judge, and SMITH and KAUFMAN, Circuit
Judges.
IRVING R. KAUFMAN, Circuit Judge:
Grady Smith was convicted in Kings County, New York, after a jury trial, of
the crimes of robbery, grand larceny, and assault in 1961, and was sentenced as
a third felony offender to term of from 15 to 20 years. Having exhausted his
state remedies, Smith filed a petition for a writ of habeas corpus in the United
States District Court for the Southern District of New York, alleging that his
conviction was constitutionally infirm because the prosecution revealed his
prior criminal record to the jury at the commencement of the trial. The district
court dismissed the writ, and this appeal followed. For the reasons below, we
affirm.
At the time of Smith's trial, there were in New York five crimes which were
misdemeanors if the defendant had no prior convictions but were considered
felonies if the defendant had previously been convicted of a crime.1 When one
of these crimes was charged as a felony, the prior crime was set forth in the
indictment, and the prosecution was permitted to inform the jury of it both by
reference to the indictment and by the introduction of proof.
3
The fourth count of the indictment upon which Smith was tried charged him
with the offense of carrying a dangerous weapon, one of the five crimes which
was raised from a misdemeanor to a felony if the accused had been previously
convicted of a crime, as Smith had been. Accordingly, the indictment recited
both the circumstances of the current offense and the fact of Smith's previous
conviction for attempted burglary, and the prosecutor read the entire indictment
in his opening to the jury. The trial judge then appropriately instructed the jury
that the prior conviction was relevant only to the degree of the offense of
carrying a dangerous weapon. Subsequently, in the course of the trial, the judge
ruled that the prosecution had failed in its proof of this offense and struck count
for from the indictment.
Smith first contends that when the prosecutor informed the jury of his prior
conviction his right to due process was violated because it unduly prejudiced
the jury's consideration of the other charges against him. Were we writing on a
clean slate, we might be quite sympathetic to such a claim, since the possibility
of unwarranted prejudice seems not insubstantial. However, in Spencer v.
Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), the Supreme Court
specifically held that the pleading and proof of prior crimes for the purpose of
establishing that the defendant was a recidivist did not violate due process.
Smith urges, nevertheless, that his case falls not under the rule in Spencer, but
under the exception to that rule which the Court carved out in Burgett v. Texas,
389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Since the fourth count of
the indictment was eventually stricken, he contends, there was ultimately no
valid purpose to support the recital of the prior conviction to the jury. We
cannot agree that the exception extends this far. In Burgett the Court found that
the prior conviction introduced at trial was presumptively invalid because at the
time of the earlier conviction defendant had not been represented by counsel.
The important distinction in the case before us is that Smith's prior conviction
was not in any manner infirm from its incipiency and was properly presented to
the jury under Spencer. We do not believe that the later failure of proof on the
charge to which it was relevant can thus make its admission retroactively
impermissible.
Smith secondly claims that informing the jury of his prior conviction violated
his right to equal protection in that is subjected him to a procedure less fair than
that afforded others similarly situated. Specifically, Smith argues that at the
time of his conviction there were in New York two classes of cases in which
proof of a prior conviction was relevant. The first was where, as in his case, the
defendant was charged with a crime which was a felony rather than a
misdemeanor if he had a previous conviction. In the second class fell those
cases where the prosecution wished to establish that the defendant was a
recidivist in order to increase his punishment. Originally, the prosecution had
been permitted to inform the jury of an accused's prior conviction in both types
of situations, but in 1957 the legislature forbade the recital of prior crimes in
the indictment for the prupose of showing recidivism.2 Thus, at the time of
Smith's trial, only persons charged with one of the five misdemeanor-felony
crimes was subject to this procedure.3
6
Smith argues that since the procedure is less fair than that afforded recidivists,
and since the two classes of persons are closely related, subjecting him to it
violated his right to equal protection. The defect in this argument lies in the
assumption that the two classes of cases are so similar. The issue of recidivism
is relevant only to the punishment appropriate upon conviction. But when a
defendant is charged with a crime which is a felony only by virtue of his prior
conviction, that prior conviction is an essential element of the present offense.
Thus the legislature had reason to feel more reluctant to prohibit the
prosecution from informing the jury of the defendant's previous crime in the
latter class of cases than in the former. In sum, we find no denial of equal
protection.
Affirmed.
These crimes were operating a motor vehicle while intoxicated, Veh. & Traf.
Law, McKinney's Consol.Laws, c. 71, 70(5); carnal abuse of a child, Penal
Law, McKinney's Consol.Laws, c. 40, 483-b; possession of eavesdropping
instruments, Penal Law 742; possession of burglar's instruments, Penal Law
408; and possession of dangerous weapons, Penal Law 1897. The first two were
deemed felonies only if the defendant had a prior conviction for the same or a
similar act, while the other three were deemed felonies if the defendant had
previously been convicted of any crime
N.Y.Code Crim.Proc. 275-b. Now the procedure is for the district attorney to
file with the court an information charging the prior crime after conviction.
Penal Law 1943
In 1961, shortly after Smith's conviction, the N.Y.Code Crime.Proc. 275-b was
revised to provide that where a prior crime is alleged for the purpose of raising
the grade of the offense from a misdemeanor to a felony, the prosecution shall
charge the previous conviction in a separate information which shall be filed
with the court. The prosecution may not refer to it in the opening to the jury,
but must prove the prior crime to the jury as an element of its case if the
defendant denies the prior conviction or stands mute

United States of America Ex Rel. Grady Smith, Petitioner-Appellant v. Hon. Edward M. Fay, Warden of Green Haven State Prison, Stormville, New York, 409 F.2d 564, 2d Cir. (1969)

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409 F.

UNITED STATES of America ex rel. Grady

United States Court of Appeals Second Circuit.

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