People v. Seager

11 Misc. 2d 261, 171 N.Y.S.2d 554, 1958 N.Y. Misc. LEXIS 3709

Opinion

George D. Ogden, J.

Defendant was convicted September 19, 1956 of a violation of section 483-b of the Penal Law — carnal abuse of a child; defendant had previously been convicted of sodomy in the first degree, and was thereupon sentenced as a second felony offender. Defendant’s first motion — to set aside the jury’s verdict of guilty of the present charge — is, in all respects denied, as the defendant could have raised any question regarding such conviction by the appropriate remedy of an appeal.

The crime of which the defendant was convicted became a felony through operation of law. A violation of section 483-b is a misdemeanor unless the person violating that section has previously been convicted of certain misdemeanors or felonies, including sodomy, when the violation becomes a felony. Since defendant had previously been convicted of a felony, he became a second felony offender, and the sentence imposed was correct. (See People v. Jarvis, 260 App. Div. 834.) Defendant’s application for a resentence is, in all respects, also denied.

Submit order.