Opinion
November 22, 1944.
Present — Cunningham, P.J., Dowling, Harris, McCurn and Larkin, JJ.
Order so far as appealed from reversed on the law, without costs of this appeal to either party, and relator remanded to the custody of the Warden of Attica State Prison, Attica, New York. Memorandum: The relator was indicted in Erie County, New York, on February 15, 1937, for the crime of criminally receiving stolen property, knowing the same to have been stolen or appropriated wrongfully in such manner as to constitute larceny and for no other indictable offense. The relator pleaded guilty to grand larceny, second degree, and, on April 5, 1937, received a sentence of fifteen years to life as a fourth offender. He challenged the legality of his conviction in a habeas corpus proceeding in the Wyoming County Court in May, 1944. The learned court held that relator's conviction and sentence were void and entered an order on July 6, 1944, dismissing the writ but remanding the relator to the custody of the Sheriff of Erie County for trial under the above mentioned indictment. From that order the People of the State of New York and the Warden of Attica State Prison have appealed to this court. Counsel for the relator asks affirmance on the grounds as stated and urged in People ex rel. Tracher v. Martin ( ante, p. 955, decided herewith). The order so far as appealed from, must be reversed and the relator remanded to the custody of the Warden of Attica State Prison for the reasons stated in our memorandum in the Tracher case ( supra). All concur. (The portion of the order appealed from remands relator to the custody of the Sheriff of Erie County, to be held under the indictment of criminally receiving stolen property.)