People ex rel. Benham v. Conboy

• Decision Date: 25 June 1962
• Citation: 35 Misc.2d 195,229 N.Y.S.2d 965
• Parties: The PEOPLE of the State of New York ex rel. Frederick D. BENHAM, Jr., Relator, v. Hon. J. P. CONBOY, as Warden, Great Meadow Correctional Institution, Comstock, New York, Respondent.
• Court: New York Supreme Court

Page 965

229 N.Y.S.2d 965

35 Misc.2d 195

The PEOPLE of the State of New York ex rel. Frederick D BENHAM, Jr., Relator, v. Hon. J. P. CONBOY, as Warden, Great Meadow Correctional Institution, Comstock, New York, Respondent.

Supreme Court, Special Term, Washington County.

June 25, 1962.

Harold R. Moore, Jr., Hudson Falls, for relator.

Louis J. Lefkowitz, Atty. Gen. (Herbert H. Smith and Robert W. Imrie, Asst. Attys. Gen., of counsel), for respondent.

FELIX J. AULISI, Justice.

The facts in this writ of habeas corpus proceeding are not in dispute.

On September 27, 1960 the relator plead guilty before the Honorable Paul J. Widlitz, County Judge of Nassau County, to the crime of Attempted Burglary in the Third Degree. On November 10, 1960 the relator was sentenced as a second felony offender for a term not less than four nor more than seven years in the State Prison. Following the sentencing and the commencement of his confinement, the relator was successful in having the first felony conviction, which provided the basis for his conviction as a second offender, dismissed in the State of Florida. Thereupon relator instituted proceedings in the Nassau County Court to have his conviction as a second felony offender vacated. On June 14, 1961, an order by Judge Widlitz was made vacating and setting aside the sentence imposed on November 10, 1960 and by said order relator was sentenced as a first felony offender to the New York State Reformatory at Elmira 'for a period not to exceed five years, said sentence to commence nunc pro tunc as of November 10, 1960'.

The relator in this application raises no issue with respect to his original sentence as a second offender, and it is conceded that such sentencing was legal and proper, and no serious question is raised regarding the right and power of the original sentencing Court to resentence the relator after the prior conviction affording basis for his conviction as a second offender was vacated. That a defendant sentenced as a multiple offender may be resentenced after the vacating of a prior conviction upon which the imposition of additional punishment was predicated is not open to question (See People ex rel. Branton v. Jackson, 6 A.D.2d 916, 175 N.Y.S.2d 748, aff'd 6 N.Y.2d 784, 187 N.Y.S.2d 8, 159 N.E.2d 353; People ex rel. Sloane v. Lawes, 255 N.Y. 112, 174 N.E. 80; People ex rel. Marcley v . Lawes, 254 N.Y. 249, 172 N.E. 487; People v. Tyson, Co.Ct., 116 N.Y.S.2d 394, aff'd 281 App.Div. 1058, 121 N.Y.S.2d 340 and People v . Keller, Gen. Sess., 37 N.Y.S.2d 61).

The relator presents two contentions as his basis for relief. He argues first that the sentencing Court was without jurisdiction to interrupt a legally imposed sentence and he further contends that the Court had...