People ex rel. Newman v. Foster

• Decision Date: 02 July 1947
• Citation: 297 N.Y. 27,74 N.E.2d 224
• Parties: PEOPLE ex rel. NEWMAN v. FOSTER.
• Court: New York Court of Appeals Court of Appeals

297 N.Y. 27

74 N.E.2d 224

PEOPLE ex rel. NEWMAN

v.FOSTER.

Court of Appeals of New York.

July 2, 1947.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Habeas corpus proceeding by the Peole of the State of New York, on the relation of Eddy Newman, against John F. Foster, as Warden of Auburn Prison. From an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, 271 App.Div. 808, 64 N.Y.S.2d 871, which unanimously affirmed an order of the Supreme Court at Special Term, Warner, J., dismissing the writ of habeas corpus and remanding relator to custody of respondent, the relator appeals by permission of the Court of Appeals.

Order reversed and proceedings remitted with directions. Eddy Newman, in pro per.

Nathaniel L. Goldstein, Atty. Gen. (Wendell P. Brown and Patrick H. Clune, both of Albany, and William S. Elder, Jr., of Auburn, of counsel), for respondent.

FULD, Judge.

Relator's challenge to the legality of his sentence as a fourth felony offender must be sustained; one of the crimes relied upon was improperly included.

Relator was sentenced as such fourth offender in the Bronx County Court in 1935, following his conviction of burglary. Eleven years later, he sued out a writ of habeas corpus and, disputing his status, attacked the validity of the sentence imposed. The Supreme Court, Cayuga County,dismissed the writ, and the Appellate Division unanimously affirmed. Appeal to this court is by our permission.

It is undisputed that relator was thrice convicted of crime prior to 1935. According to the information filed pursuant to section 1943 of the Penal Law, Consol.Laws, c. 40, those offenses were (1) grand larceny, in 1917, in the Supreme Court, Franklin County; (2) burglary, in 1923, in the Kings County Court, and (3) carrying a concealed weapon, in 1920, in the Court of Special Sessions of Union County, New Jersey. The first two convictions in this State are concededly felonies. A question exists only as to the crime committed in New Jersey, which was based upon a statute providing that one ‘who shall carry any revolver, pistol, firearm * * * concealed in or about his clothes or person, shall be guilty of a misdemeanor * * *.’ Laws of New Jersey 1912, ch. 225, s 1. The information, to which relator pleaded guilty in the New Jersey court, alleged only the carrying of a concealed revolver and, indeed, any further recital would have been immaterial, surplusage under the statute.

Section 1942 of the Penal Law is the statute which provides for the punishment of a fourth offender; it defines him as one who, after having been three times convicted in New York of felonies or in any other jurisdiction ‘of crimes which if committed within this state would be felonious,’ commits a felony here. Whether the acts committed in the foreign jurisdiction would be felonious if committed within this State, depends, of course, upon New York Law. What those acts were, however, is to be determined by reference only to the foreign judgment of conviction and the indictment or information upon which it was predicated, and the court is restricted to consideration of the operative and material facts therein set forth. See People v. Voelker, 222 App.Div. 717, 225 N.Y.S. 883; see, also, People v. Wicklem, 183 Misc. 639, 642, 53 N.Y.S.2d 88, 91;People v. Dacey, 166 Misc. 827, 836, 837, 3 N.Y.S.2d 156, 166, 167. To permit proof of facts different from those alleged would lead only to abuse and to impossibility of administration. See Matter of Emert v. Thorn, 249 App.Div. 301, 292 N.Y.S. 58; People v. Wicklem, supra; People v. Dacey, su...