People v. Branton

• Decision Date: 02 March 1960
• Citation: 221 N.Y.S.2d 496
• Parties: PEOPLE of the State of New York v. John BRANTON, Defendant-Petitioner.
• Court: New York County Court

Page 496

221 N.Y.S.2d 496

PEOPLE of the State of New York v. John BRANTON, Defendant-Petitioner.

Nassau County Court.

March 2, 1960.

Manuel W. Levine, Dist. Atty. for Nassau County, Mineola, for the people.

John Branton, pro se.

PAUL J. WIDLITZ, Judge.

This is an application by defendant for an order in the nature of a writ of error coram nobis to vacate and set aside a prior judgment of conviction of this court.

In 1937 defendant pleaded guilty in this court to the crime of grand larceny, first degree, and was sentenced to the New York State Reformatory at Elmira, New York. In 1951 defendant upon the verdict of a jury in this court was convicted of the crimes of burglary, third degree, and petit larceny. The indictment upon which this latter conviction was predicated recited the previous 1937 conviction and charged defendant as being a prior felony offender (see People v. De Santis, 305 N.Y. 44, 110 N.E.2d 549). Defendant was thereupon sentenced as a prior felony offender for the crime of burglary, third degree, (Penal Law, § 1941).

Thereafter on November 14, 1952, this court, in a coram nobis proceeding, set aside and vacated the 1937 conviction as defendant had not been advised as to his right to counsel when arraigned in 1937. Defendant was then resentenced on the 1951 conviction for the crime of burglary, third degree, as a first felony offender.

Defendant now seeks to vacate and set aside the 1951 conviction on the grounds that this court was without jurisdiction to resentence defendant as a first offender after defendant had been convicted by a jury as a second offender and, on the further ground, that defendant was deprived of a fair trial in that the jury had before it evidence of defendant's invalid prior conviction and could have been prejudiced against defendant by reason thereof.

Defendant's first contention has been expressly rejected by the Appellate Division, Third Department (People ex rel. Branton v. Jackson 6 A.D.2d 916, 175 N.Y.S.2d 748). Defendant's second contention was not passed upon by that court which stated 'We may not, with propriety, indicate an opinion as to whether, in a proper proceeding, the facts would entitle relator to relief, as that question is for the court in which he was tried and sentenced.' (p. 917, 175 N.Y.S.2d p. 750)

Upon a review of the authorities on this issue, this court concludes that the defendant's second contention is without merit. It is well established that it is not reversible error to include in the indictment allegations charging defendant as a prior felony offender and to receive proof thereof at the trial (People v. De Santis, 305 N.Y. 44, 110 N.E.2d 549). It has further been held that it is not error to introduce into evidence defendant's prior felony conviction when alleged in the indictment even though defendant prior to the jury being impanelled admitted his former conviction and...