People v. Tyson

281 A.D. 1058, 121 N.Y.S.2d 340, 1953 N.Y. App. Div. LEXIS 4312

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 1953
• Status: Published

Opinion

Appeal from an order of the County Court, Broome County. Defendant was convicted on May 18, 1923, in Albany County on his plea of guilty of the crime of escape as a felony. (Penal Law, § 1694.) On November 23, 1926, he was convicted in the Broome County Court on his plea of guilty of forgery, second degree, as a second offender. The second offense charge was based on the Albany conviction three years before. The 1923 conviction then stood as a valid and binding judgment binding on the People, the defendant and on all other courts. In 1950 the Albany conviction was vacated by the Albany County Court on a writ of error coram nobis. Defendant then applied to the Broome County Court to vacate the 1926 judgment on a writ of error coram nobis. The judgment was vacated on October 28, 1952, and the defendant resentenced as a first offender as of 1926. The court thus corrected the judgment on the defendant’s application to conform to the juctgment which would have been given in 1926 had the Albany judgment not then been in effect. This was within the court’s power; it was the extent of relief to which defendant would have been entitled on the most favorable view that could be taken of his ease. The prior judgment or its later rescission had no effect on the main charge of forgery to which defendant pleaded guilty. The resentenee is proper. Order unanimously affirmed. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.