People ex rel. Koehler v. La Vallee , 187 N.Y.S.2d 79 ( 1959 )

Appeal by the People from an order of the Supreme Court, Clinton County which sustained a writ of habeas corpus and remanded the relator to the Kings County Court for resentencing. On December 18, 1936 the relator was sentenced by the Kings County Court to an indeterminate term of from 2% to 5 years upon a conviction of grand larceny, second degree. On April 15, 1942 he was sentenced by the Kings County Court as a second offender to an indeterminate term of from 15 to 30 years upon a conviction of robbery, second degree. He was paroled on March 26, 1952 and on June 29, 1956 he was sentenced by the same court as a third felony offender to an indeterminate term of from 10 to 20 years upon a conviction of robbery, third degree. After this conviction he was received in prison owing over 19 years delinquent time as a felony parole violator. The relator based his petition for a writ of habeas corpus on the noncompliance with section 480 of the Code of Criminal Procedure at the time of his 1936 conviction. The court below directed that the relator be resentenced as a first felony offender on his 1942 conviction. The failure to comply with section 480 at the time of the 1936 conviction does not vitiate that conviction and it was properly considered in sentencing the relator as a second offender in 1942 (People ex rel. De Pasquale v. MeMann, 8 A D 2d 662). Order reversed on the law and the facts and writ dismissed, without costs, and the relator remanded to the custody of the Warden of Clinton Prison, Dannemora, New York. Foster, P. J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.