44 Misc. 2d 942 | N.Y. Sup. Ct. | 1964
Defendant moves to vacate a judgment resulting from his plea of guilty to a violation of section 3305 of the Public Health Law as a result of which he was committed as a second narcotic offender by one of the Justices of this court on February 7, 1964 to the New York City Penitentiary (for an indefinite sentence not exceeding three years under Correction Law, art. 7-a). The defendant contends that the court failed to warn him before accepting his guilty plea that he would be subject to a Correction Law sentence under article 7-a thereof. Section 1751-a of the Penal Law provides in part that a second narcotic misdemeanor offender must be sentenced to the New York City Penitentiary for a fixed sentence of not less than six months nor more than one year. However, there is a further provision in said statute that nothing contained therein shall limit the operation of article 7-a of the Correction Law (indefinite sentence). There is no statutory or decisional requirement that the court, before accepting a plea of guilty to a misdemeanor narcotics violation, must advise the defendant that he may be punished either under the Penal Law aforesaid or under the Correction Law. All that is required is that the defendant be admonished by the court as provided by section 335-b of the Code of Criminal Procedure to the effect that if he has previously been convicted of a crime he will be subject to different or additional punishment. This statute was complied with in the instant case. Accordingly the motion is denied and the District Attorney is directed to serve a copy of this order upon the defendant.
