People v. Horne

Appellate Division of the Supreme Court of New York

People v. Horne

18 A.D.2d 695, 235 N.Y.S.2d 969, 1962 N.Y. App. Div. LEXIS 6371

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 17, 1962

StatusPublished

This text of 18 A.D.2d 695 (People v. Horne) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Horne, 18 A.D.2d 695, 235 N.Y.S.2d 969, 1962 N.Y. App. Div. LEXIS 6371 (N.Y. Ct. App. 1962).

Pincite

Opinion

In a proceeding by defendant, designated by him as one for a writ of error coram nobis, to vacate his sentence as a second felony offender, and for resentence as a first felony offender upon a judgment of the County Court, Queens County, entered May 11, 1960, upon his plea of guilty, convicting him of the crime of attempted burglary in the third degree, the defendant appeals from an order of said court, dated April 9, 1962, which denied his application. Appeal dismissed. In our opinion, whether the defendant’s application be deemed one for a writ of coram nobis or a motion for resentence is immaterial under the circumstances of this case. The basic question of law as to the felonious quality of defendant’s prior conviction in 1950 in the State of Florida, was raised and decided of record before entry of the County Court’s judgment of conviction on May 11, 1960. That question could have been reviewed on the appeal from the judgment of conviction, which the defendant took but failed to prosecute. Coram nobis is not available as a remedy alternative to appeal (People v. Sullivan, 3 N Y 2d 196; People v. Sadness, 300 N. Y. 69); nor is an order denying a motion for resentence, such as the one at bar, appealable (People v. Kay, 6 A D 2d 1037; People v. Rockwell, 1 A D 2d 933; People v. Sidoti, 1 A D 2d 232, 234). Nevertheless, we have examined into the merits of defendant’s contentions that his Florida conviction would have been for a crime of the grade of misdemeanor only, if such crime had been committed in New York. We find such contentions to be without substance. Whether the defendant’s earlier conviction was based on section 810.01 or section 810.02 of the Florida Statutes Annotated, it was properly deemed to be a prior felony conviction in this jurisdiction (People ex rel. Gold v. Jackson, 5 N Y 2d 243; People v. Schildkraut, 285 App. Div. 933; People v. Hatchet, 1 A D 2d 1016). Ughetta, Acting P. J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In a proceeding by defendant, designated by him as one for a writ of error coram nobis, to vacate his sentence as a second felony offender, and for resentence as a first felony offender upon a judgment of the County Court, Queens County, entered May 11, 1960, upon his plea of guilty, convicting him of the crime of attempted burglary in the third degree, the defendant appeals from an order of said court, dated April 9, 1962, which denied his application. Appeal dismissed. In our opinion, whether the defendant’s application be deemed one for a writ of coram nobis or a motion for resentence is immaterial under the circumstances of this case. The basic question of law as to the felonious quality of defendant’s prior conviction in 1950 in the State of Florida, was raised and decided of record before entry of the County Court’s judgment of conviction on May 11, 1960. That question could have been reviewed on the appeal from the judgment of conviction, which the defendant took but failed to prosecute. Coram nobis is not available as a remedy alternative to appeal (People v. Sullivan, 3 N Y 2d 196; People v. Sadness, 300 N. Y. 69); nor is an order denying a motion for resentence, such as the one at bar, appealable (People v. Kay, 6 A D 2d 1037; People v. Rockwell, 1 A D 2d 933; People v. Sidoti, 1 A D 2d 232, 234). Nevertheless, we have examined into the merits of defendant’s contentions that his Florida conviction would have been for a crime of the grade of misdemeanor only, if such crime had been committed in New York. We find such contentions to be without substance. Whether the defendant’s earlier conviction was based on section 810.01 or section 810.02 of the Florida Statutes Annotated, it was properly deemed to be a prior felony conviction in this jurisdiction (People ex rel. Gold v. Jackson, 5 N Y 2d 243; People v. Schildkraut, 285 App. Div. 933; People v. Hatchet, 1 A D 2d 1016). Ughetta, Acting P. J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

18 A.D.2d 695, 235 N.Y.S.2d 969, 1962 N.Y. App. Div. LEXIS 6371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-horne-nyappdiv-1962.

Opinion

Related

Cite This Page — Counsel Stack