People v. Dafoe , 254 A.D. 624 ( 1938 )

This is an appeal from a judgment of conviction rendered in the County Court of the county of St. Lawrence on the 9th day of February, 1937, sentencing defendant, as a third offender, to a term of fifteen years in Clinton Prison, pursuant to section 1941 of the Penal Law. The defendant was permitted to take an appeal upon a typewritten record and has submitted his appeal to the court together with his brief. The People are represented by the district attorney’s office of St. Lawrence county. The defendant was indicted by the grand jury of St. Lawrence county on October 2, 1935, on two crimes, burglary, third degree, and grand larceny, second degree. He was arraigned October 2,1935, and entered a plea of not guilty, and the matter was sent to the County Court for trial. On October 21, 1935, an attorney was assigned to him and the matter was tried in County Court in November, 1935. He was found guilty of the crimes charged in the indictment, and being sworn by the clerk after conviction, admitted that he had been convicted in 1922 of burglary, third degree, and of grand larceny, second degree, in St. Lawrence county, and in the year 1927 of the crime of grand larceny, second degree, in St. Lawrence county, and in 1932 for escaping from Warsaw Prison, Wyoming county. The county judge on November 4, 1935, sentenced the defendant to Clinton Prison for a term of not less than fifteen years nor more than his natural life. The defendant appeared before the county judge of Clinton county on January 18, 1937, on a writ of habeas corpus. It was his contention that he was not a fourth offender within the meaning of section 1942 of the Penal Law in that his conviction for escape in the year 1932 could not have been considered as constituting one of four violations. On February 3, 1937, the county judge of St. Lawrence county directed the defendant to be brought before the County Court for the purpose of resentence. Defendant was then returned to St. Lawrence county and the district attorney filed, an information with the court on February 9,1937, accusing the defendant of having been twice convicted of a felony within the meaning of section 1941 of the Penal Law, previous to his conviction of burglary, third degree, and grand larceny, second degree, in the County Court of St. Lawrence county on November 4, 1935, and of having been three times convicted of felonies within the meaning of section 1941 of the Penal Law. Defendant was brought before the court, counsel was assigned to him, he was informed of his rights under the information filed by the district attorney and the defendant admitted that he had been convicted of the felonies set forth in the information. The county judge of St. Lawrence county thereupon made an order vacating the former sentence of defendant imposed on February 4, 1935, whereby defendant was sentenced to be confined at Clinton Prison, Dannemora, for a term of not less than fifteen years and not more than the term of his natural life, and the county judge of St. Lawrence county imposed a sentence that the defendant be confined in Clinton Prison at Dannemora for fifteen years and this sentence is to date from the date of the original sentence, to wit, November 4, 1935. The court had the power to impose this sentence under section 1943 of the Penal Law. (People ex rel. Fernandez v. Kaiser, 230 App. Div. 646.) The fact that the defendant upon conviction in 1935 gave the record in answer to the questions of the clerk as to his previous convictions did not take away the right to file an information at any time under section 1943 of the Penal La.w and to have a proper sentence imposed. (Moore v. Thorn, 245 App. Div. 180; affd., 270 N. Y. 502; Matter of Dodd v. Martin, 248 id. 394; Graham v. West Virginia, 224 TJ. S. 616.) The judgment of conviction of the County Court of St. Lawrence county by which the defendant was convicted on the 9th day of February, 1937, and sentenced to a term of fifteen years as a third offender pursuant to section 1941 of the Penal Law, should be affirmed. Judgment of conviction of the County Court of St. Lawrence county, by which the defendant was convicted, on the 9th day of February, 1937, and sentenced to a term of fifteen years as a third offender, pursuant to section 1941 of the Penal Law, unanimously affirmed. Present — Hill, P. J., Rhodes, Crapser, Bliss and Heffeman, JJ.