People ex rel. Mirenda v. Brophy

256 A.D. 891, 9 N.Y.S.2d 238, 1939 N.Y. App. Div. LEXIS 5265

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 1939
• Status: Published

Opinion

Order modified on the law by providing that the warden of Auburn State Prison be directed to return the relator to the County Court of Bronx county to be resentenced for the crime of attempted grand larceny in the second degree, committed December 8, 1935, after a previous conviction for a felony, and as modified affirmed, without costs. Memorandum: Considerable confusion has occurred in this case as to the sentence to be imposed upon this relator. He is now incarcerated under a commitment showing his conviction of the crime of attempted grand larceny in the second degree as a first offender. The sentence is not the proper punishment provided for this crime. It appears on the record that he had already been charged as a second offender under the provisions of section 1941 of the Penal Law and had admitted the former conviction. He should be sentenced for the crime of attempted grand larceny in the second degree committed December 8, 1935, after a previous conviction for a felony. All concur. (The order dismisses a writ of habeas corpus and remands relator into custody.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Taylor, JJ.