People ex rel. Colton v. Lawes

234 A.D. 771 | N.Y. App. Div. | 1931

Order dismissing writ of habeas corpus and remanding relator to the custody of the warden of Sing Sing Prison affirmed. No opinion. Young, Kapper, Carswell and Davis, JJ., concur; Lazansky, P. J., dissents, with the following memorandum: Petitioner, indicted for grand larceny in the first degree as a second offender, was found guilty of grand larceny in the second degree without any reference to a prior offense. The record of the County Court contains nothing to indicate that the court had any information, by examination under section 485-a of the Code of Criminal Procedure, or otherwise, that petitioner was a second offender. Therefore, there should have been an indeterminate sentence, instead of a definite sentence. It now appears, from proof other than that obtained from the County Court record of the trial, that petitioner was a second offender, having been found guilty of grand larceny in the second degree, and sentence suspended. The general rule is that a suspended sentence is not a conviction. (People v. Fabian, 192 N. Y. 443; People ex rel. Marcley v. Lawes, 254 id. 249.) Section 470-b of the Code of Criminal Procedure is an exception, and applies only to indictment and conviction as a second offender. Petitioner was indicted as a second offender, but not convicted as such. That section has no application to proceedings under section 1943 of the Penal Law. (People ex rel. Marcley v. Lawes, supra.) Petitioner should be returned to the County Court for resentence to an indeterminate sentence.