People ex rel. Ackers v. Brophy

258 A.D. 859, 16 N.Y.S.2d 80

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1939
• Status: Published

Opinion

Order affirmed, without costs. Memorandum: The relator was properly convicted as a second offender on the 30th day of October, 1918. He had been previously convicted of a felony on the 19th day of May, 1915, for violation of the provisions of section 1897 of the Penal Law, as the same was amended by chapter 608 of the Laws of 1913. Although this section was amended by chapter 390 of the Laws of 1915, which was enacted on the 28th day of April, 1915, the provisions of the 1915 statute by its very terms did not become effective until the 1st day of September, 1915, and until that time the provisions of section 1897, as it previously read, remained in full effect. Even if the respondent 'is right in his contention that there was some irregularity in the designation of the place of imprisonment in the sentence of May 19, 1915 (Penal Law, § 2181, but see Penal Law, § 2186, and People ex rel. Quinn v. Schleth, 180 App. Div. 319), such irregularity does not affect the validity of the conviction as a conviction for a felony. (People v. Finucan, 151 App. Div. 92; People ex rel. Devoe v. Kelly, 97 N. Y. 213.) Ah concur. (The order dismisses a writ of habeas corpus and remands relator into custody.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Dowling, JJ.