People ex rel. Tortora v. Snyder

258 A.D. 1028, 17 N.Y.S.2d 120, 1940 N.Y. App. Div. LEXIS 8686

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1940
• Status: Published

Opinion

Appeal by relator from an order made by the Clinton County Court dismissing a writ of habeas corpus. He is confined in a State Prison under a sentence of twenty years minimum and forty years maximum pronounced July 27, 1920, by the Kings County Court upon conviction by a jury of the crime of robbery, first degree, as a second offense. The first conviction was petit larceny, of which he was convicted on April 18, 1916. Section 1941 of the Penal Law (Laws of 1909, chap. 88) provided: “ A person, who, after having been convicted within this State, of a felony, or an attempt to commit a felony, or of petit larceny * * * commits any crime, within this State, is punishable upon conviction of such second offense as follows: * * * 2. If the subsequent crime is such that, upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then such person must be sentenced to imprisonment for a term not less than the longest term, nor more than twice the longest term, prescribed for the first conviction.” The provision concerning petit larceny as a previous conviction was repealed in 1920. (Laws of 1920, chap. 571.) This became a law on May 5, 1920, by the approval of the Governor, but by its terms it did not take effect until September 1, 1920. Robbery, first degree, was punishable by twenty years’ imprisonment. The sentence of not less than twenty years nor more than forty years was a proper sentence in view of the facts that an indeterminate sentence was required when a defendant had not previously been convicted of a felony. The remedy for this relator is an application either to the Executive or to the Parole Board. Order unanimously affirmed. Present — Hill, P. J., Crapser, Heffernan, Sehenek and Foster, JJ.