274 A.D. 909 | N.Y. App. Div. | 1948
On July 31, 1947, appellant was convicted of attempted burglary in the third degree as a third offender and sentenced to an indeterminate term of three and a half years minimum to five years maximum. On that day he began serving his sentence. On April 14, 1948, on motion of the District Attorney, the original sentence was revoked on the ground that it was erroneous. On May 27, 1948, appellant was resentenced to an indeterminate term of five years minimum to five and a half years maximum. He appeals from an order dismissing a writ of habeas corpus sought on the ground that the original sentence was legal and that the court had no power, after the expiration of the term at which he was originally sentenced and after the sentence had been partially executed, to revoke the original sentence. Order affirmed. The original sentence was illegal. Where the sentence is originally illegal, the court has the power to correct it even after the term has ended and after the sentence has been partially executed. (People ex rel. Miresi v. Murphy, 253 App. Div. 441, motion for leave to appeal denied 278 N. Y. 741.) Nolan, P. J., Carswell, Johnston, Adel and Sneed, JJ., concur.
