United States Ex Rel. Willis E. Smith v. Walter B. Martin, Warden of Attica Prison

239 F.2d 530, 1956 U.S. App. LEXIS 4191

• Court: Court of Appeals for the Second Circuit
• Decided: November 1, 1956
• Docket: 24077_1
• Status: Published

Opinion

PER CURIAM.

If appellant’s 1944 conviction were to be upset, he would have to be resentenced in the County Court of Onondaga County for his last conviction of Grand Larceny in the first degree as a second offender rather than a third offender. As a second felony offender, appellant would not be entitled to any sentence less than he actually received in 1953. The Multiple Offenders Law, Section 1941 of the Penal Law of the State of New York, McK. Consol.Laws, c. 40, states in pertinent part, as follows:

“If the second or third felony is such that, upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then such person must be sentenced to imprisonment for an indeterminate term, the minimum of which shall be not less than one-half of the longest term prescribed upon a first conviction, and the maximum of which shall be not longer than twice such longest term.”

In New York, punishment for Grand Larceny in the first degree is imprisonment for a term not exceeding ten years. Penal Law, § 1295. Thus, as a second offender, appellant could not receive a sentence for this offense with a minimum under five years in any event. He would commence service of such sentence immediately, with credit for time, retroactive to June of 1953. The minimum expiration date of such sentence would not be until June of 1958 and therefore, appellant’s application is premature. See Me- Nally v. Hill, 293 U.S. 131, 138-139, 55 S.Ct. 24, 79 L.Ed. 238; Holiday v. Johnston, 313 U.S. 342, 349,550, 61 S.Ct. 1015, 85 L.Ed. 1392.

In the light of the foregoing, we have not considered appellant’s contentions concerning the invalidity of his second conviction.

Affirmed.