149 Misc. 562, People ex rel. Fryer v. Brophy

Citation:149 Misc. 562, 267 N.Y.S. 735
Party Name:THE PEOPLE OF THE STATE OF NEW YORK ex rel. JACOB FRYER, Relator, v. JOSEPH H. BROPHY, Warden of Auburn State Prison, Auburn, New York, Respondent.
Case Date:November 11, 1933
 
FREE EXCERPT

Page 562

149 Misc. 562

267 N.Y.S. 735

THE PEOPLE OF THE STATE OF NEW YORK ex rel. JACOB FRYER, Relator,

v.

JOSEPH H. BROPHY, Warden of Auburn State Prison, Auburn, New York, Respondent.

Supreme Court of New York, Cayuga County.

November 11, 1933

Habeas corpus proceeding.

Let an order be entered accordingly.

SYLLABUS

The relator in this proceeding on writ of habeas corpus to have declared illegal a sentence for the term of his natural life as a fourth offender, having entered a general plea of guilty to the indictment for the fourth felony, which charged, among other things, that in the Superior Court in the county of Santa Clara, in the State of California, the relator had been in due form of law duly convicted of a felony, to wit, the crime of burglary, on a certain information pending in the said court against him, without having demurred to the form of such fourth felony indictment and the substance thereof, and without having made a motion in arrest of judgment, waived any objections thereto.

Accordingly, the relator will not now be permitted to urge that the California conviction must be regarded as illegal in New York because founded on an information, and not on an indictment, and that, therefore, the sentence for natural life as a fourth offender is illegal.

Moreover, the conviction of felony in California on information, without the intervention of indictment by a grand jury, being legal in that State, must be considered a valid conviction within section 1942 of the Penal Law.

Page 563

[267 N.Y.S. 736] COUNSEL

John F. Bennett, Jr., Attorney-General [Edward T. Boyle of counsel], for the People.

Jacob Fryer, relator, in person.

KENYON, J.

The relator, Jacob Fryer, is now confined for the term of his natural life, as a fourth offender, in the New York State Prison, at Auburn, N. Y., upon a conviction based upon his plea of guilty, as charged in the indictment, which indictment, dated December 8, 1926, charged him with the crime of burglary in the third degree and grand larceny in the second degree, after having been three times previously convicted of felonies. By a writ of habeas corpus he asks to have the sentence of natural life declared illegal.

The indictment sets up in full that on the 29th day of June, 1906, said Jacob Fryer, under the name of Harry Kramer, was in due form of law duly convicted in the Superior Court in the county of Santa Clara, Cal., of the crime of burglary upon a certain information then and there pending in said court against him, in that he did willfully, unlawfully and feloniously enter the dwelling house of one George Douglass, and whereupon the court did pronounce sentence that he be imprisoned in the State Prison in the State of...

To continue reading

FREE SIGN UP