7 A.D.2d 804 | N.Y. App. Div. | 1958
Appeal by relator, purportedly from an order of a Justice of the Supreme Court sitting in Clinton County, denying an application for a writ of habeas corpus. The paper referred to as the order appealed from appears to be a copy of the Justice’s decision and not an order. The appeal must, therefore, be dismissed. This court is never disposed to require great formality and exactitude in papers filed by inmates of State institutions and by others unrepresented by counsel. It is essential, however, that the legal requirements of an order be observed and particularly that the papers used on the application be recited. Otherwise and in view of the form of clerk’s certification which seems customarily to be used in these cases, there can be no certainty that the record or papers on appeal are complete. In this ease, further, the papers include no notice of appeal or, in fact, any indication that an appeal has been duly taken. We have, however, examined the merits and find no basis for relator’s contention that before pleading guilty to the felony of which he was convicted he should have been informed that, by reason of his prior felony convictions, he would be charged and sentenced as a third offender. The court and the District Attorney followed the statutory procedure (Penal Law, §§ 1941, 1943), which has been held valid and constitutional. (People v. Gowasky, 244 N. Y. 451.) Appeal dismissed, without costs. Foster, P. J., Bergan, Gibson and Herlihy, JJ., concur.