People ex rel. Bogan v. La Vallee

12 A.D.2d 568, 206 N.Y.S.2d 698, 1960 N.Y. App. Div. LEXIS 7275

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 1960
• Status: Published

Opinion

Appeal from an order of the County Court of Clinton County which sustained a writ of habeas corpus “ to the extent that ” relator was directed to be remanded for resentence for the felony to which he pleaded guilty on May 14, 1941 and for which he was resentenced as a third felony offender; the order reciting as the basis for this relief its determination that relator’s resentence upon one of the prior convictions used to constitute him a multiple offender was invalid for failure of compliance with section 480 of the Code of Criminal Procedure and that such prior conviction “ should not be considered as a' prior felony conviction". The prior adjudication was properly considered as constituting relator a multiple offender and while it remains in force no infirmity in the sentence affords ground for an attack upon the sentence under which relator is presently held. (People ex rel. Emanuel v. McMann, 7 N Y 2d 342; People ex rel. Egitto v. Jackson, 7 A D 2d 808, motion for leave to appeal denied 5 N Y 2d 711, cert. denied 360 U. S. 906.) Order reversed, on the law and the facts, and writ dismissed, without costs.