People Ex. Rel. St. Andrews v. Martin

• Decision Date: 25 February 1960
• Parties: , 165 N.E.2d 879 PEOPLE, etc., ex rel. Charles Stephen ST. ANDREWS, Appellant, v. Walter B. MARTIN, as Warden of Attica Prison, Attica, N. Y., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 317

198 N.Y.S.2d 317

7 N.Y.2d 947, 165 N.E.2d 879

PEOPLE, etc., ex rel. Charles Stephen ST. ANDREWS, Appellant, v. Walter B. MARTIN, as Warden of Attica Prison, Attica, N. Y.,

Respondent.

Court of Appeals of New York.

Feb. 25, 1960.

Appeal from Supreme Court, Appellate Division, Fourth Department, 7 A.D.2d 619, 179 N.Y.S.2d 679.

Relator brought habeas corpus proceeding against the Warden of the Attica Prison, Attica, New York. The Wyoming County Court, Conable, J., entered an order that relator be remanded to the Sheriff of Onondaga County at Attica Prison to be returned to Onondaga County Court for further proceedings on his conviction of the crime of burglary in the third degree, and the warden appealed.

The Appellate Division reversed the order, dismissed the writ, and remanded the relator to the custody of the Sheriff of Onondaga County at Attica Prison to be returned to the Onondaga County Court, with directions to vacate the resentence of the relator on March 27, 1958 as a first felony offender on his conviction of burglary in the third degree on April 8, 1957, and to resentence the relator thereon as a second felony offender.

The Court of Appeals, 5 N.Y.2d 1004, 185 N.Y.S.2d 260, denied motion of relator for leave to appeal to the Court of Appeals, on ground that an appeal lay as of right.

The relator appealed to the Court of Appeals, and motion was made in the Court of Appeals for leave to have the appeal heard on the original record and for assignment of counsel.

The Court of Appeals, 6 N.Y.2d 990, 191 N.Y.S.2d 967, granted motion to have the appeal heard on the original record and for assignment of counsel, and assigned William H. Emerson, Esq., of Rochester, New York, as counsel for the relator on appeal.

The relator contended in the Court of Appeals that commitment order of the Onondage County Court, following relator's plea of guilty through assigned counsel, to charge of rape in the second degree, did not constitute the relator a felony offender under Section 1941 of the Penal Law, Consol.Laws, c. 40, dealing with punishment for second or third offense of felony.

William H. Emerson, Rochester, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Paxton Blair, Sol. Gen., Albany, Joseph J. Rose, Asst. Atty. Gen., of counsel), for respondent.

Order affirmed, without costs.

All concur.