People v. Wissenfeld

• Decision Date: 28 May 1956
• Citation: 1 A.D.2d 1047,153 N.Y.S.2d 573
• Parties: PEOPLE of the State of New York, Respondent, v. Jacob SISSENFELD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 573

153 N.Y.S.2d 573

1 A.D.2d 1047

PEOPLE of the State of New York, Respondent, v. Jacob SISSENFELD, Appellant.

Supreme Court of New York, Appellate Division,

Second Department.

May 28, 1956.

Jacob Wissenfeld, in pro. per.

Warren J. Schneider, New York City, for respondent.

Defendant appeals from a judgment of the County Court, Westchester County, entered upon a plea of guilty to burglary in the third degree and upon a verdict of a jury finding him to be the person named in a superseding information who had been convicted of three prior felonies, and imposing sentence as a fourth offender to a term of from twenty years to life in a State prison. Defendant also appeals from informal orders denying his motion to vacate his conviction of the crime of burglary in the third degree and his motion in arrest of the said judgment of conviction. He further appeals from two formal orders dated December 6, 1954, and February 11, 1955, denying his applications in the nature of writs of error coram nobis on the ground that his plea of guilty to the charge of burglary in the third degree was obtained under promises that a sentence of no more than six years would in imposed.

Appellant contends (1) that the District Attorney was not authorized to file a superseding information alleging three prior felony convictions, after he had previously filed an information alleging two prior convictions, that in any event two of the three crimes do not constitute felonies in this State, and that one of said two convictions has been ruled out by the law of the case; (2) that his plea of guilty should be withdrawn because it had been induced by promises of a lighter sentence than was actually imposed, and (3) that the proof before the jury was insufficient to permit a finding that he had committed the three prior felonies alleged in the superseding information, and that such trial was unfair. Judgment, and orders dated December 6, 1954, and February 11, 1955, affirmed. No opinion. No separate appeal lies from the intermediate orders, including the order denying the motion in arrest of judgment, which have been reviewed on the appeal from the judgment of conviction.

WENZEL, MURPHY, UGHETTA and HALLINAN, JJ., concur.

NOLAN, P. J., concurs in the affirmance of the orders dated December 6, 1954, and February 11, 1955, but dissents from the affirmance of the judgment, and votes to reverse the judgment and to remit the action to the County Court for the imposition of a proper sentence on appellant, with the following memorandum:

Appellant has been convicted of the crime of burglary in the third degree, and sentenced as a fourth offender. Two of the alleged prior convictions were in the State of California. One, for assault with intent to commit robbery, in 1948, resulted in a sentence to San Quentin prison. The authenticated record of the California Superior Court discloses that its judgment was as follows: 'It is therefore ordered, adjudged and decreed that the said Defendant Jack Wissenfeld, be punished by imprisonment in the State Prison at San Quentin, California, for the term prescribed by law. Thereupon the Court suspended said sentence on condition that said Defendant be confined in the County Jail of the City and County of San Francisco, State of California, for the term of one (1) year.'

It is appellant's contention that this record does not furnish proof that he was convicted of the crime of assault with intent to commit robbery, within the meaning of section 1942 of the Penal Law. Cf. People ex rel. Marcley v. Lawes, 254 N.Y. 249, 172 N.E. 487. I am in accord with the majority view that there is no merit to this contention. Although in California the court may suspend the imposition of sentence, in which case no judgment of conviction is rendered, In re Phillips, 17 Cal.2d 55, 109 P.2d 344, 132 A.L.R. 644, language similar to that employed in the judgment under consideration has been construed in that State as an attempt to suspend the execution of the sentence imposed, People v. Mendosa, 178 Cal. 509, 173 P. 998, People v. Cravens, 115 Cal.App.2d 201, 251 P.2d 717. Under the laws of California, a court has no power to suspend the execution of a sentence, otherwise than by granting probation. California Penal Code, § 1203; People v. Cravens, supra. Consequently the attempted suspension in the instant case was void. The sentence imposed remained valid, however, People v. Cravens, supra; People v. Harvey, 137 Cal.App. 22, 29 P.2d 787; People v. Mendosa, supra, and the record of the judgment sufficiently established a prior conviction of a crime, under the laws of...