People v. Swearengen

Appellate Division of the Supreme Court of New York

People v. Swearengen

26 A.D.2d 657, 272 N.Y.S.2d 413, 1966 N.Y. App. Div. LEXIS 3718

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

DecidedJuly 5, 1966

StatusPublished

This text of 26 A.D.2d 657 (People v. Swearengen) 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. Swearengen, 26 A.D.2d 657, 272 N.Y.S.2d 413, 1966 N.Y. App. Div. LEXIS 3718 (N.Y. Ct. App. 1966).

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Opinion

In a coram nobis proceeding, defendant appeals from an order of the County Court, Westchester County, entered September 29, 1965, which, without a hearing, denied his application to vacate a judgment of said court, rendered July 19, 1962 upon resentence, convicting him of burglary in the first degree, upon a jury verdict, and imposing sentence upon him as a third felony offender, nunc pro tunc as of December 9, 1943, the date of the original sentence. The 1943 judgment was affirmed (People v. Swearengen, 269 App. Div. 754; mot. for Iv. to app. den. 294 N. Y. 644). Order affirmed. Defendant, sentenced as a fourth offender upon his conviction in 1943, was resentenced in 1962 following the vacatur of one of the prior convictions. His sole contention, in substance, is that an information as required by section 1943 of the Penal Law should have been filed before he could be resentenced as a prior felony offender. However, it is undisputed that there was full compliance with section 1943 at the time of the original sentence and that defendant then admitted that he was the person named in the information as having been convicted of felonies on three prior occasions. Under such circumstances, the filing of another information was unnecessary. (People ex rel. De Temple v. Morhous, 283 App. Div. 834, mot. for lv. to app. den. 306 N. Y. 986.) Beldock, P. J., Ughetta, Brennan, Hopkins and Benjamin, JJ., concur.

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In a coram nobis proceeding, defendant appeals from an order of the County Court, Westchester County, entered September 29, 1965, which, without a hearing, denied his application to vacate a judgment of said court, rendered July 19, 1962 upon resentence, convicting him of burglary in the first degree, upon a jury verdict, and imposing sentence upon him as a third felony offender, nunc pro tunc as of December 9, 1943, the date of the original sentence. The 1943 judgment was affirmed (People v. Swearengen, 269 App. Div. 754; mot. for Iv. to app. den. 294 N. Y. 644). Order affirmed. Defendant, sentenced as a fourth offender upon his conviction in 1943, was resentenced in 1962 following the vacatur of one of the prior convictions. His sole contention, in substance, is that an information as required by section 1943 of the Penal Law should have been filed before he could be resentenced as a prior felony offender. However, it is undisputed that there was full compliance with section 1943 at the time of the original sentence and that defendant then admitted that he was the person named in the information as having been convicted of felonies on three prior occasions. Under such circumstances, the filing of another information was unnecessary. (People ex rel. De Temple v. Morhous, 283 App. Div. 834, mot. for lv. to app. den. 306 N. Y. 986.) Beldock, P. J., Ughetta, Brennan, Hopkins and Benjamin, JJ., concur.

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Bluebook (online)

26 A.D.2d 657, 272 N.Y.S.2d 413, 1966 N.Y. App. Div. LEXIS 3718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-swearengen-nyappdiv-1966.

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