People ex rel. Lewis v. Foster

270 A.D. 873, 61 N.Y.S.2d 846, 1946 N.Y. App. Div. LEXIS 4391

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 1946
• Status: Published

Opinion

Order reversed on the law, without costs of this appeal to any party, writ dismissed, and relator remanded to the custody of the Warden of Auburn State Prison. Memorandum: While sentence was suspended on the conviction of January 31, 1918, there was a revocation and a sentence nineteen days later consituting a final judgment of conviction within the meaning of section 1942 of the Penal Law. The conviction for escape in 1922 was properly included in the information charging relator with being a fourth offender as section 1699 was not enacted until 1932 (L. 1932, ch. 479). The order must be reversed, writ dismissed and relator remanded to the custody of the Warden of Auburn State Prison. (People ex rel. Marcley v. Lawes, 228 App. Div. 660, affd. 254 N. Y. 249; People ex rel. Bistany v. Brophy, 173 Misc. 572, affd. 260 App. Div. 994.) All concur. (The order sustains the writ of habeas corpus and directs that relator be returned to Oneida County Court for resentenee.) Present — Taylor, P. J., Dowling, MeCurn, Larkin and Love, JJ. [See post, p. 978.]