People v. Cookingham

Appeal from an order of the Schenectady County Court which denied appellant’s application for relief under a writ of error coram nobis. On May 18, 1954 appellant was convicted upon a plea of guilty of the crime of grand larceny in the second degree. He was arraigned as a second felony offender under an information filed by the District Attorney of Schenectady County. This information charged, and there is no dispute about the facts, that theretofore and on May 15, 1940 appellant was convicted of grand larceny in the second degree and given a suspended sentence of from two and one-half to five years in prison; and also placed on probation for five years. For the purpose of imposing sentence as a second offender a suspended sentence shall be regarded as a conviction (Code Crim. Pro., § 470-b). Apparently the only contention raised by appellant is that the district attorney was required to proceed by indictment instead of by information in pleading a second offense. This contention is without merit (People v. Hunter, 3 A D 2d 926; Penal Law, § 1943). Counsel assigned to act for appellant has brought to our attention every conceivable argument in favor of appellant, and has performed his duty conscientiously. Order unanimously affirmed. Present — Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ.