| N.Y. App. Div. | Jul 11, 1939
Appellant contends that he was improperly sentenced as a second offender upon conviction after a plea of guilty of the crime of attempting to commit burglary in the third degree. The certificate of conviction shows that after the conviction an information was filed charging him with having been previously convicted of a felony, that he was properly informed of his rights in connection therewith and stood mute. A jury was thereupon impaneled and found that he was the same person thus previously convicted and he was then sentenced as a second offender. The criminal record attached to the return reveals that this previous conviction was for sodomy, for which he received a sentence of two years at a Federal prison. According to the brief for appellant this conviction was had in a court-martial of the United States Army.
The statute (Penal Law, § 1941) directs additional punishment as a second or third offender for a person who has previously been once or twice convicted within this State of a felony, or under the laws of any other State, government or country of a crime which, if committed within this State, would be a felony. Sodomy is a crime in this State. (Penal Law, § 690.) Appellant urges that a conviction by a court-martial of the United States is not such a conviction as comes within the purview of section 1941 of the Penal Law because in such court there is no indictment, the court is
Hill, P. J., Crapsbr and Heffernan, JJ., concur.
Order affirmed.