People ex rel. Cullen v. Murphy , 256 A.D. 597 ( 1939 )

On September 22, 1930, petitioner received a determinate sentence of twenty-five years for robbery, first degree. Although no information was filed charging him with being a second offender, and he was not indicted as such, the record discloses that he was examined on oath by the court before judgment was pronounced and upon such examination stated that he had previously been convicted of a felony.

He now insists that upon such conviction in 1930 he should have received an indeterminate instead of a determinate sentence. The sentence imposed was proper. (People v. Daiboch, 265 N. Y. 125; People v. Simon, 178 App. Div. 660.)

The relator was before the court on a writ of habeas corpus granted on his own application, and has thereby submitted to the court the whole question of his right to a discharge. (People ex rel. Atkins v. Jennings, 248 N. Y. 46.) Having admitted the prior felony it was unnecessary to make further proof of the fact. (People ex rel. Bothermel v. Murphy, 274 N. Y. 281.)

Order affirmed, without costs.

Hill, P. J., Rhodes, McNamee and Heffeenan, JJ., concur; Bliss, J., dissents, with an opinion.