People ex rel. Gaczewski v. Jennings

223 A.D. 78, 228 N.Y.S. 373, 1928 N.Y. App. Div. LEXIS 6134

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1928
• Status: Published

Opinion

Per Curiam.

The definite sentence for ten years was proper although the relator when the sentence was imposed on January 18, 1922, was not a second offender within the meaning of section 1941 of the Penal Law (as amd. by Laws of 1920, chap. 571), because the crime on which the conviction was based had not been committed subsequent to a prior conviction of a felony or of an attempt to commit a felony. He was not entitled to an indeterminate sentence under the provisions of section 2189 of the Penal Law (as amd. by Laws of 1919, chap. 411), for at the time of the imposition of the sentence he had already been convicted of a crime punishable by imprisonment in a State prison. This is not a case where there is a concurrent conviction of two crimes where the sentence for each conviction must be indeterminate as in People v. Bergman (176 App. Div. 318). The definite term of imprisonment imposed in the sentence has not yet elapsed and the appellant is, therefore, not entitled to his release.

All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Sawyer, JJ.

Order affirmed.