People ex rel. Bell v. La Vallee , 254 N.Y.S.2d 797 ( 1964 )

Order unanimously reversed on the law, writ dismissed, and relator remanded to the custody of the Warden of Auburn Prison; Memorandum: The Warden of Auburn Prison appeals from an order of Cayuga County Court which sustained a writ of habeas corpus, vacated a sentence imposed upon relator as a second felony offender and directed that he be resentenced as a first felony offender. The basis for sustaining the writ was the County Court’s determination that deferment of sentence, together with probation, did not constitute a legal conviction on a first felony so as to invoke section 470-b of the Code of Criminal Procedure for the purpose of conviction as a second felony offender. Section 470-b provides that “ For the purpose of indictment and conviction of a second offense, the plea or verdict and suspension of sentence * * * shall be regarded as a conviction Relator’s contention, as set forth in his petition, is that a “ deferred ” sentence is not a “ suspended ” sentence within the meaning of section 470-b. Any doubt in this respect was resolved by the Court of Appeals in People v. Shaw (1 N Y 2d 30). Chief Judge Conway in the prevailing opinion, at page 31, in referring to the defendant’s “ deferred ” sentence stated: “ Upon that conviction he received a sentence which we construe to be a suspended one.” The dissenting opinion of Judge Fhld concurred in this construction in the footnote at page 37 where he wrote “in its context, ‘deferred’ meant ‘suspended.’” We are not here concerned with postponement of sentence for indefinite period. (Matter of Hogan v. Bohan, 305 N. Y. 110, 112-113; cf. Code Crim. Pro., § 933.) The deferred sentence and the placing of relator under probation upon his conviction for the first felony resulted in relator being properly classified as a second felony offender pursuant to the provisions of section 470-ib of the code. (Appeal by People from order of Cayuga County Court sustaining a writ of habeas corpus and ordering relator returned to Madison County Court for further proceedings.) Present — Williams, P. J., Bastow, Goldman, Henry and Noonan, JJ.