People ex rel. Paterno v. Martin

268 A.D. 956, 51 N.Y.S.2d 679, 1944 N.Y. App. Div. LEXIS 4397

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1944
• Status: Published

Opinion

Order so far as appealed from reversed on the law, without costs of this appeal to either party,' and relator remanded to the custody of the Warden of Attica State Prison, Attica, New York. Memorandum: The relator was indicted in Chautauqua County in 1941 for the crime of robbery, first degree. He pleaded guilty to the crime of robbery, second degree. An information was filed by the district attorney charging the relator with being a second offender in that he had been convicted of grand larceny, second degree, in Erie County in 1937, which charge the relator admitted, whereupon the court sentenced him for a term of fifteen to thirty years. In 1937 the grand jury of Erie County indicted the relator for the crime of criminally receiving stolen property and for no other indictable offense. Relator pleaded guilty to attempted grand larceny, second degree, and was sentenced to a term of not less than fifteen months or more than two years and six months. Execution of the sentence was suspended. Relator did not appeal from the judgment of conviction. In the Wyoming County Court, in 1943, the relator challenged the legality of his Brie County conviction in a habeas corpus proceeding. The learned court held that the Brie County conviction was invalid and on January 8, 1944, entered an order dismissing the writ but remanding the relator to the custody of the Sheriff of Chautauqua County for further proceedings upon his plea of guilty to the crime of robbery, second degree. From that order the People of the State of New York and the Warden of Attica State Prison have appealed to this court. Counsel for the relator asks affirmance on the grounds as urged and stated in People ex rel. Tracher v. Martin (ante, p, 955, decided herewith). The order, so far as appealed from, must be reversed and the relator remanded to the custody of the Warden of Attica State Prison for the reasons stated in our memorandum in the Tracker case (supra). All concur. (The portion of the order appealed from remands relator to the custody of the Sheriff of Chautauqua County for further proceedings upon his plea of guilty to the crime of robbery, second degree.) Present— Cunningham, P. J., Dowling, Harris, McCurn and Larkin, JJ.