People v. Miller , 8 N.Y.S.2d 53 ( 1938 )

Bran cato, J.

Motion by the defendant above named to correct a judgment of conviction and for resentence. I am entertaining this motion upon the request and with the consent of the trial judge of this court by whom the defendant was sentenced on November 30, 1936, after his plea of guilty of attempted grand larceny, second degree, as a second offender, to an indeterminate term in State’s prison at Sing Sing.

After due consideration, the court is satisfied that the crime charged in the indictment was committed by the defendant on May 15, 1935, and not on May 15, 1936, as erroneously stated in the indictment.

The amendment to section 1941 of the Penal Law by chapter 70 of the Laws of 1936 became effective March 6,1936. The defendant was sentenced in accordance with the provisions of this section as amended and was given the indeterminate sentence of not less than two years and six months and not more than five years. It is his contention that he should have received the determinate sentence.

The crime having been committed prior to March 6, 1936, the defendant was entitled to receive a determinate sentence as provided by section 1941 of the Penal Law before the amendment, even though the conviction and sentence took place after the date when the amendment became effective. (People ex rel. Horowitz v. Lawes, 168 Misc. 772.)

Motion to correct judgment and for resentence granted. Submit one order on one day’s notice to the district attorney, containing also a direction upon the warden of Sing Sing Prison to produce the defendant before this court for resentence.