229 A.D. 385, People v. Hammersmith

Citation:229 A.D. 385
Party Name:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROBERT E. HAMMERSMITH, Appellant.
Case Date:April 30, 1930
Court:New York Supreme Court Appelate Division, Fourth Department
 
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Page 385

229 A.D. 385

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.

ROBERT E. HAMMERSMITH, Appellant.

Supreme Court of New York, Fourth Department.

April 30, 1930

Page 386

MOTION for reargument of an appeal by the defendant from a judgment of the County Court of the county of Onondaga, entered in the office of the clerk of the county of Onondaga. (See 225 A.D. 724.)

COUNSEL

Arthur E. Sutherland and Robert E. Hammersmith in person, for the appellant.

Clarence Unckless, District Attorney [William C. Martin, Assistant District Attorney, of counsel], for the respondent.

THOMPSON, J.

Defendant was convicted of the crime of criminally receiving stolen property as a fourth offense, and sentenced to life imprisonment. The indictment charged him with the crime of 'criminally receiving stolen property, after three previous convictions within this State of felonies.' In its recital of the particulars of the previous felonies, the indictment alleges that in the first conviction sentence was suspended and defendant was placed under probation. Defendant did not demur to the indictment or move to set it aside, but entered a plea of not guilty and proceeded to trial. On the trial he took the stand in his own behalf, and, in reply to questions put to him by his attorney, testified that in respect to the conviction upon which sentence was suspended he was afterwards brought into court and sentenced to the Elmira Reformatory. The verdict of the jury was guilty as charged in the indictment. From this conviction the defendant appealed to this court and the judgment of conviction was affirmed on November 9, 1928 (225 A.D. 724). This is a motion by defendant, appellant, for a reargument of his appeal on the ground that the case of People v. Schaller (224 A.D. 3), which holds that for the purposes of the Fourth Offender Law (Penal Law, § § 1942, 1943, as respectively amd. and added by Laws of 1926, chap. 457) a suspended sentence

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is not a conviction, was not called to our attention or considered by us in our determination of the appeal. In this he is in error.

The decision in the Schaller case was handed down June 8, 1928. Before our decision in the instant case it was called to our attention by both the district attorney and defendant, and was considered by us.

On or about December 8, 1928, appellant made application to Chief Judge CARDOZO of...

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