People ex rel. Fernandez v. Kaiser

• Decision Date: 14 April 1931
• Citation: 256 N.Y. 581,177 N.E. 149
• Parties: The PEOPLE of the State of New York ex rel. Leonard FERNANDEZ, Appellant, v. Harry M. KAISER, Warden of Clinton Prison, Respondent.
• Court: New York Court of Appeals Court of Appeals

256 N.Y. 581

177 N.E. 149

The PEOPLE of the State of New York ex rel. Leonard FERNANDEZ, Appellant,

v.Harry M. KAISER, Warden of Clinton Prison, Respondent.

Court of Appeals of New York.

April 14, 1931.

Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (230 App. Div. 646, 246 N. Y. S. 309), entered November 24, 1930, which affirmed an order of the Clinton County Court dismissing a writ of habeas corpus and remanding the relator to custody. The relator on October 28, 1926, was convicted of the crime of burglary in the third degree and sentenced to a term of one year in a penitentiary, which sentence he served. On October 5, 1927, while on trial on two charges of burglary in the second degree, the district attorney presented an information charging him with two previous convictions for felonies in other states. The court thereupon revoked the sentence which he had served and upon his admission in open court of the previous conviction sentenced him as a second offender and dismissed the charges under which he was being tried. Relator in this proceeding seeks release, claiming his sentence was in violation of section 6 of article 1 of the state Constitution as involving a second jeopardy.

James B. McKenna, of Buffalo, for appellant.

John J. Bennett, Jr., Atty. Gen. (Leon M. Layden, of Whitehall, and Almon W. Burrell, of Albany, of counsel), for respondent.

PER CURIAM.

Order affirmed.

CARDOZO, C. J., and POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN, and HUBBS, JJ., concur.