| N.Y. App. Div. | Nov 16, 1938
Order affirmed, without costs. Memorandum: Relator, upon his plea of guilty, was convicted of a felony, and sentenced as a first offender, to a term of not less than two nor more than four years in a State prison. The court suspended the execution of the sentence and placed relator on probation during good behavior. After about two and one-half years relator was brought before the court, charged with misconduct, violative of the terms of his probation, and resentenced to serve not less than two nor more than four years. Relator claims (quoting from his brief) that he was “ sentenced * * * to two years probation,” and that, having served that sentence, he could not be sentenced again for the same crime. That claim is untenable. Relator’s probation was not a sentence but a relief from the operation of a sentence. When, by bad behavior, he forfeited the indulgence given to him, it was proper for the court to resentence him. (Code Crim. Proe. § 470-a.) All concur. (The order dismisses a writ of habeas corpus and remands relator into custody.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Dowling, JJ.