People v. Hunter

On April 13, 1950 respondent and two others were indicted by the Kings County Grand Jury for first degree robbery (respondent being armed) and for two other crimes. On April 19, 1950 respondent pleaded guilty to the armed robbery count. On April 26, 1950 an information was filed charging respondent with a prior felony conviction, as to which execution of sentence had been suspended. On May 15, 1950 respondent admitted his identity and the prior conviction. He was thereupon adjudged to be a second felony offender and sentenced to a term of 30 to 60 years. In July, 1956 respondent moved to vacate the judgment on an application in the nature of a writ of error cor am nobis. By order dated October 8, 1956 the application was granted to the extent of directing that respondent be resentenced. On October 22, 1956 respondent was adjudged to be a first felony offender and was sentenced to a term of 15 to 30 years. The ground on which the original judgment of conviction as a second offender was vacated was that it is improper to proceed by way of information under sections 1941, 1942 and 1943 of the Penal Law against a second felony offender, where sentence for the first felony had been suspended. The People appeal from the order dated October 8, 1956 and from the judgment rendered October 22, 1956. Order dated October 8, 1956 and judgment rendered October 22, 1956 reversed on the law, and judgment rendered May 15, 1950 reinstated. The findings of fact below are affirmed. It is clear from the legislative history of section 470-b of the Code of Criminal Procedure, the language of the 1926 amendments to sections 1941, 1942 and 1943 of the Penal Law, and the legislative purpose as explained by the Joint Legislative Committee on the Co-ordination of Civil and Criminal Practice Acts (N. Y. Legis. Doc., 1926, No. 84, p. 22) which recommended the 1926 legislation, that the legislative intent was to permit the prosecuting authorities to proceed either by way of indictment, or by way of information after indictment, to increase the punishment with respect to a second felony offender, whether sentence had been imposed or suspended upon the first felony conviction. (See People v. Be Santis, 305 N. Y. 44.) Nolan, P. J., Wenzel, Beldock, Hallinan and Kleinfeld, JJ., concur. [3 Misc 2d 1032.]