People ex rel. Shepherd v. Martin ( 1944 )

Order modified on the law in accordance with the memorandum and as modified affirmed, without costs of this appeal to either party. Memorandum: This appeal is from an order dismissing a writ of habeas corpus, and remanding the prisoner to the Warden of Attica Prison. The defendant pleaded guilty to the crime of rape, second degree, as charged in the indictment. Before sentence was passed he was sworn and examined as required by section 485-a of the Code of Criminal Procedure. On such examination he stated that he had been previously convicted of the crime of forgery. He was thereafter sentenced as a second offender to a term of not less than ten years or more than eleven years in Attica Prison. The prior conviction was not charged in the indictment, nor did the District Attorney file an information accusing him of such previous conviction. We do not regard the information disclosed upon the examination under section 485-a of the Code of Criminal Procedure as a sufficient basis for determining that the defendant was a second offender and for the imposition of the additional penalty prescribed by section 1941 of the Penal Law. (People v. Rosen, 208 N. Y. 169; People v. Gowasky, 244 N. Y. 451.) Since the indictment did not charge him with a previous conviction the District Attorney should have filed an information accusing him of such previous conviction. The prisoner should be returned to the County Court of Madison County for further proceedings in accordance with law. All concur. (The order dismisses a writ of habeas corpus and remands relator to the custody of defendant.) Present — Cunningham, P. J., Taylor, Dowling, Harris and McCurn, JJ.