People v. Wright
| Decision Date | 17 May 1965 |
| Citation | 259 N.Y.S.2d 610,46 Misc.2d 395 |
| Parties | The PEOPLE of the State of New York Plaintiff, v. Martin J. WRIGHT, Jr., Defendant. |
| Court | New York County Court |
Martin J. Wright, Jr., petitioner, pro se.
Robert E. Jones, Dist. Atty., Cortland County, for the People.
Defendant, serving a sentence as a second felony offender, moves for resentence as a first felony offender in connection with his conviction in Cortland County Court on October 11, 1937 for attempted robbery in the first degree.
No issue of fact is raised in the petition. Defendant was originally convicted in Cattaraugus County Court on October 22, 1934 for Grand Larceny and sentenced to the Elmira Reformatory. This was the underlying felony conviction for the present sentence.
On May 15, 1961 the Cattaraugus County Court set aside the prior sentence for failure on sentencing to comply with Section 472 of the Code of Criminal Procedure. On July 3, 1962 he was resentenced to the same reformatory term, nunc pro tunc.
Defendant's contention is that the 1962 resentence, being subsequent to the Cortland County sentence, vitiates his status as a multiple felony offender. The issue raised is whether the status of a convicted multiple offender is affected by a subsequent resentence, nunc pro tunc of an underlying felony.
In support of his claim, defendant relies upon People v. Weinberger, 21 A.D.2d 353, 251 N.Y.S.2d 790; affd. 15 N.Y.2d 735, 257 N.Y.S.2d 167. In that case a resentence as a first felony offender was directed where although the second felony was committed subsequent to the first on which a plea of guilty had been entered, judgment was not passed until after the commission of the second felony.
The Appellate Division held that the sentence is the judgment and that no conviction occurs until some sentence is passed even though it be only a suspended sentence.
Such is not the case here. Defendant received an actual sentence in 1934 even though it was later set aside. The record shows that only the sentence was set aside and that the resentence was nunc pro tunc.
The vacation and re-sentence of an earlier conviction does not disturb a defendant's status as a multiple offender (People v. Manasek, 35 Misc.2d 228, 229 N.Y.S.2d 295), since a resentence nunc pro tunc merely corrects a judgment of conviction as of the time it was originally entered (People v. Manieri, 4 Misc.2d 567, 148 N.Y.S.2d 546).
The Court does not view People v. Weinberger (...
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People v. Kelly
...(People ex rel. Naumo v. Jackson, 1 A.D.2d 743, 147 N.Y.S.2d 556; People v. Manieri, 4 Misc.2d 567, 148 N.Y.S.2d 546; People v. Wright, 46 Misc.2d 395, 259 N.Y.S.2d 610) with the exception that, if a suspended sentence is imposed on that conviction, even though it be imposed nunc pro tunc, ......