People ex rel. Brown v. Martin , 264 A.D. 746 ( 1942 )

This is an appeal from an order dismissing a writ of habeas corpus entered in the Clinton county clerk’s office. Relator was convicted of the crime of attempted assault January 22, 1940. Thereafter, and on February 7, 1940, an information was filed against relator by the district attorney charging him with three prior felony convictions, and on March 27, 1940, relator was sentenced to imprisonment as a fourth offender. The three prior convictions alleged in the information were: (a) Conviction for robbery in the State of Tennessee in 1927; (b) conviction for receiving money under false pretense in the State of New Jersey in 1934; (c) conviction for attempted larceny from the person of an individual in Newark, N. J., on October 28, 1935. Relator makes no complaint regarding convictions designated as “ a ” and “ b,” but does challenge the validity of the conviction had in Newark, N. J., on October 28, 1935, designated as “ e.” Under the last conviction, “ e,” relator was sentenced to serve a term of one year, and after serving more than eight months of said sentence, the unserved portion was suspended and relator released from custody. He now takes the position that although he has served approximately two-thirds of his sentence the conviction cannot form a basis for a sentence as a fourth offender under section 1942 of the Penal Law. One who commits a felony after having been three times convicted of other felonies must be punished as a fourth offender. The fact that a portion of the punishment is suspended does not lessen the degree of criminality. It merely relieves the offender of part of the punishment, but does not remove the taint of conviction. The action of the New Jersey court in relieving relator from serving a portion of the sentence originally imposed was in effect a pardon and did not obliterate the record of his conviction or blot out the fact that he had been convicted. (People ex rel. Jobissy v. Murphy, 244 App. Div. 834; affd., 268 N. Y. 695.) The order appealed from should be affirmed. Order unanimously affirmed, without costs. Present —1 Hill, P. J., Crapser, Bliss, Schenck and Foster, JJ.