People v. Klein

280 A.D. 897, 115 N.Y.S.2d 533, 1952 N.Y. App. Div. LEXIS 4082

Opinion

Defendant appeals from an order of the County Court of Westchester County denying his application, in the nature of a writ of error coram nobis, to vacate a sentence imposed on him as a fourth felony offender and for resentence as a third offender. Defendant’s first conviction was in 1912, for the crime of carrying a dangerous weapon in violation of section 1897 of the Penal Law. At that time, the statute provided that such a violation was a felony. Section 1897 was amended in 1915, prior to the date of defendant’s conviction and sentence as a fourth offender, so as to constitute the same offense a misdemeanor. Defendant contends that by reason of such amendment, the 1912 conviction should not have been considered a felony conviction for the purpose of sentencing him as a fourth offender under section 1942 of the Penal Law. Order affirmed. Defendant’s conviction in 1912 was for a felony under the statute as it then existed, and it is that statute which is controlling and determines the nature and degree of the crime and the applicability of section 1942 of the Penal Law. {People ex rel. Kruger v. Snyder, 261 App. Div. 352; Matter of Emert v. Thorn, 249 App. Div. 301; People ex rel. Ackers v. Brophy, 258 App. Div. 859; People ex rel. Gwynne v. Lawes, 252 App. Div. 761.) Nolan, P. J., Carswell, Johnston, MacCrate and Schmidt, JJ., concur.