People v. Englese

• Decision Date: 25 May 1959
• Citation: 187 N.Y.S.2d 681,8 A.D.2d 744
• Parties: PEOPLE of the State of New York, Respondent, v. Benjamin ENGLESE, true name Benjamin Dominick Englese, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 681

187 N.Y.S.2d 681

8 A.D.2d 744

PEOPLE of the State of New York, Respondent, v. Benjamin ENGLESE, true name Benjamin Dominick Englese, Appellant.

Supreme Court, Appellate Division, Second Department.

May 25, 1959.

Michael I. Winter, Brooklyn, for appellant.

Frank D. O'Connor, Dist. Atty., Long Island City, for respondent; Morton Greenspan, New York City, of counsel.

Before NOLAN, P. J., and WENZEL, UGHETTA, HALLINAN and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

Appeals (1) from a judgment of conviction rendered by the County Court, Queens County, resentencing appellant nunc pro tunc for violation of section 1897 of the Penal Law (carrying a dangerous weapon as a misdemeanor), after the vacating of a judgment of conviction rendered by said court on April 24, 1953 on his plea of guilty to the crime of violation of section 1897 of the Penal Law (carrying a dangerous weapon as a felony), and (2) from so much of an order of said court directing that appellant be produced in court for the purpose of vacating the judgment rendered April 24, 1953, as directs resentence and as denies his motion for leave to withdraw his plea of guilty.

Judgment affirmed.

No separate appeal lies from the order, which has been reviewed on the appeal from the judgment of conviction.

NOLAN, P. J., and UGHETTA, HALLINAN and KLEINFELD, JJ., concur.

WENZEL, J., dissents and votes to reverse the judgment and to remit the matter to the County Court for further proceedings as indicated in the fellowing memorandum.

Appellant was convicted of a felony on his plea of guilty to an indictment charging him with a felony. Thereafter, on appellant's motion the judgment was vacated, and the indictment, without a formal amendment, was considered in effect to be amended to be one charging him with a misdemeanor. To said 'amended' indictment appellant had never pleaded, but his motion to withdraw his plea of guilty to the original indictment was denied, and he was resentenced for the commission of a misdemeanor on his plea of guilty to the original felony indictment. I shall assume that the original indictment was not void and that appellant, by failing to object to the indictment before sentence was first imposed and by pleading guilty, waived any objection that the original indictment was defective or irregular (see, e. g., People v. Portner, 278 App.Div. 787, 104 N.Y.S.2d 17). Nevertheless, appellant might have preferred to plead guilty to a felony indictment in consideration...