218 A.D. 862 | N.Y. App. Div. | 1926
Peremptory mandamus order affirmed, without costs. Under section 1943 of the Penal Law, in effect July 1, 1926, when the district attorney presented to the County Court an information that Simmons had been convicted four times of felony, it was the duty of the County Court in which the last conviction was had to cause Simmons to be brought before it, and to inform him of the allegations in the information and of his right to be tried as to the truth thereof, according to law, and to require Simmons to say whether he is the same person as charged in the information, or not. It was not within the province of the County Court to anticipate any of the questions that might be raised when Simmons was brought before it. Since the information contained the essential facts, it was the duty of the court to cause Simmons to be brought before it. Upon the record before this court, it cannot pass upon the questions of whether or not section 1943 of the Penal Law is applicable to Simmons, whether or not the power of the court is discretionary