271 N.Y. 151, People ex rel. Hirschberg v. Orange County Court

Citation:271 N.Y. 151, 2 N.E.2d 521
Opinion Judge:CRANE, Chief Judge.
Party Name:PEOPLE ex rel. HIRSCHBERG, Dist. Atty., v. ORANGE COUNTY COURT et al. PEOPLE v. THOMPSON.
Attorney:Appeal from Supreme Court, Appellate Division, Second department. Henry Hirschberg, Dist. Atty., of Newburgh, for appellant. Henry Hunter, of Newburgh, for respondents.
Judge Panel:LEHMAN, O'BRIEN, HUBBS, CROUCH, LOUGHRAN, and FINCH, JJ., concur.
Case Date:May 19, 1936
Court:New York Court of Appeals
 
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Page 151

271 N.Y. 151

2 N.E.2d 521

PEOPLE ex rel. HIRSCHBERG, Dist. Atty.,

v.

ORANGE COUNTY COURT et al.

PEOPLE

v.

THOMPSON.

Court of Appeals of New York.

May 19, 1936

Proceeding by the People of the state of New York, on the relation of Henry Hirschberg, district attorney of Orange county for a prohibition order, restraining the Orange County Court or Henry B. Merritt, special county judge of Orange county, from exercising certain powers and amending records in the case of the People of the State of New York against Peter Thompson, alias Peter McCarty. An order of the Special Term, denying the application ( 166 Misc. 529,282 N.Y.S. 72), was affirmed by the Appellate Division ( 246 A.D. 640, 284 N.Y.S. 1010), and relator appeals by permission.

Reversed and application granted in part.

Page 152

[2 N.E.2d 522] Appeal from Supreme Court, Appellate Division, Second department. Henry Hirschberg, Dist. Atty., of Newburgh, for appellant.

Henry Hunter, of Newburgh, for respondents.

Page 153

CRANE, Chief Judge.

The district attorney of Orange county has sought to obtain a prohibition order to restrain the County Court or the special county judge from exercising powers and amending records in a manner unauthorized by law. His application has been denied by the Special Term and the Appellate Division. In our opinion it should have been granted in part at least, as we shall presently demonstrate.

Fifteen years ago, in June, 1921, one Peter Thompson, alias Peter McCarty, with three associates was arraigned in the County Court of Orange county upon an indictment charging him with burglary in the third degree. The records of the court show a conviction upon a plea of guilty to burglary in the third degree, and a sentence of Thompson to eleven months in Westchester County Penitentiary and a fine of $100.

In November, 1934, Thompson was again convicted, this time for manslaughter in the second degree, and being a second felony offender under section 1943 of the Penal Law (Consol.Laws, c. 40) was sentenced to a term of fifteen years in a state prison.

He was tried in the Supreme Court. After his conviction, and before sentence, the district attorney, pursuant to said section of the Penal Law, filed an information charging him with being a second felony offender in that he had previously and in 1921 been convicted and sentenced for burglary in the third degree. Thompson remained silent and refused to plead or answer to this information. A jury being impaneled and testimony taken, he was found to be the person previously convicted as alleged in the information. People v. Gowasky, 244 N.Y. 451, 155 N.E. 737, 58 A.L.R. 9. What took place at the trial before the jury on the information charging the defendant with the former conviction appears only in so far as Thompson's affidavit alleges that his attempt to challenge and impeach the court records was excluded.

Thompson took no appeal from this last judgment of conviction and made no motion in arrest of judgment. His time to do so has...

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