People ex rel. Silva v. Wilkins , 250 N.Y.S.2d 10 ( 1964 )

Order unanimously affirmed, without costs of this appeal to either party. Memorandum: The second count of the indictment herein charged defendant with feloniously possessing one eighth of an ounce of a substance containing 1% and more of the alkaloid heroin. Appellant plead guilty to an attempt to commit this crime and following other proceedures, here immaterial, was sentenced as a second felony offender to a term of not less than 9 nor more than 10 years. The crime charged in the second count, although not so denominated in the indictment, was obviously an alleged violation of subdivision 3 of section 1751 of the Penal Law. This subdivision (unlike subd. 2 of the same section) relates to possession or control in the absence of any proof of intent to sell. A violation of subdivision 3 provides a penalty of 3 to 10 years. Subdivision 5 of the same section provides that a conviction of an attempt to commit any of the crimes set forth in the section is punishable by a term of not less than half the minimum or more than half the maximum. Conviction of an attempt to commit the crime described in subdivision 3 would permit a sentence of not less than one and one half nor more than five years. Upon sentence of appellant as a second offender (Penal Law, § 1941) the permissible maximum sentence would have been not less than two and one-half years or more than 10 years. The sentence imposed (9 to 10 years) was within such permissible limits. (Appeal from order of Wyoming County Court dismissing, following a hearing, writ of habeas corpus and remanding relator to custody of Warden of Attica Prison.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecehio, JJ.