People v. Weinberger

9 Citing cases

  1. People v. Rhoads

    221 Cal.App.3d 56 (Cal. Ct. App. 1990)   Cited 27 times
    In Rhoads, supra, 221 Cal.App.3d 56, our colleagues at the Fourth District Court of Appeal held, "for purposes of... section 11370.2, subdivision (c), 'conviction' means the ascertainment of guilt, which occurred in [that] case when [the] defendant voluntarily entered his plea of guilty to the prior offense."

    Health and Safety Code section 11370.2, subdivision (c) provides: "Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment." Defendant cites People v. Weinberger (1964) 21 A.D.2d 353 [251 N.Y.S.2d 790] as the only authority to support his contention that a guilty plea is not a conviction until sentence is imposed. Although the facts in Weinberger are identical to those in this case, the decision is based on the legislative intent behind the New York second offender statute in light of other New York cases and criminal statutes which defined the term "conviction."

  2. United States ex rel. Rohrlich v. Fay

    240 F. Supp. 848 (S.D.N.Y. 1965)   Cited 6 times

    Here, 'the jury (had ample evidence) with which to determine the credibility of the witness' -- an issue which had been explored 'ad nauseam.' See People v. Weinberger, 21 A.D.2d 353, 251 N.Y.S.2d 790 (2d Dep't 1964), aff'd, 15 N.Y.2d 735, 257 N.Y.S.2d 167, 205 N.E.2d 306 (1965) (guilty plea not 'conviction' for Multiple Offender Act purposes until sentence is imposed or suspended). N.Y.Code Crim.Proc. § 913-n.

  3. State v. Rodrigues

    68 Haw. 124 (Haw. 1985)   Cited 26 times
    Holding that "conviction," for purposes of sentencing repeat offenders pursuant to HRS § 706-606.5(b), meant "a judgment entered upon the finding" of guilt by a jury or court.

    5, State v. Sylva, 61 Haw. at 388, 605 P.2d at 498, we conclude a mere finding of guilt by a jury or a court does not constitute a "conviction" within the meaning of the section; a judgment entered upon the finding does. There is support for this conclusion "in the general rule that where disabilities, disqualifications and forfeitures are to follow upon a conviction, in the eye of the law a person is not deemed to have been convicted unless it is shown that a judgment has been pronounced upon the verdict." People v. Weinberger, 21 A.D.2d 353, 355, 251 N.Y.S.2d 790, 793-94 (1964) (citations omitted); see also Kitsap County Republican Central Commission v. Huff, 94 Wn.2d 802, 808, 620 P.2d 986, 989 (1980); Vasquez v. Courtney, 272 Or. 477, 479, 537 P.2d 536, 537 (1975); People ex rel. Grogan v. Lisinski, 113 Ill. App.3d at 280, 446 N.E.2d at 1254. Where a "conviction" serves as grounds for an automatic mandatory sentence without possibility of parole, there also is good reason to deem a person convicted only upon the pronouncement of judgment.

  4. People v. Weinberger

    14 N.Y.2d 981 (N.Y. 1964)

    Decided October 8, 1964 Appeal from (2d dept.: 21 A.D.2d 353) MOTIONS TO ENLARGE TIME

  5. People v. Ethrindge

    36 A.D.2d 80 (N.Y. App. Div. 1971)   Cited 6 times
    In Ethrindge, however, the original sentence was vacated pursuant to People v Montgomery (24 N.Y.2d 130), solely to extend the defendant's time to appeal.

    This contention is without substance. It is undisputed that the defendant was convicted of a felony, was sentenced in 1955 and thereafter served his term. He thereby clearly came within section 1941 of the former Penal Law, which required additional punishment for any defendant "who, after having been once * * * convicted within this state, of a felony * * * commits any felony, within this state" (see People v. Weinberger, 21 A.D.2d 353, 354, affd. 15 N.Y.2d 735). Consequently, his 1967 sentence as a second felony offender was proper when imposed and its propriety is not affected by the fact that in 1970 his 1955 sentence was vacated and reimposed in order to allow his time to appeal from the 1955 judgment to begin anew; and his motion seeking a contrary determination was properly denied.

  6. People ex rel. Newcombe v. La Vallee

    33 A.D.2d 946 (N.Y. App. Div. 1970)

    We cannot agree. In People v. Shaw ( 1 N.Y.2d 30), the Court of Appeals noted that section 470-b of the Code of Criminal Procedure and section 1941 of the Penal Law, when read together, make it clear that a prior conviction and suspended sentence properly form the basis for treating a subsequently convicted felon as a second offender (see, People v. Weinberger, 21 A.D.2d 353, affd. 15 N.Y.2d 735). Judgment affirmed, without costs.

  7. People v. Kelly

    48 Misc. 2d 1083 (N.Y. Sup. Ct. 1966)

    Under the circumstances, the motion is granted to the extent of vacating the sentence imposed upon the defendant as a second felony offender on June 20, 1941, and the defendant is directed to be brought before the court for resentence on the 3d day of February, 1966. If, at the time of resentence on the 1941 conviction, a sentence is newly imposed as of the day of such resentence, it is obvious that the sentences of 1944 and 1957, which depend for their validity as second and third felony adjudications on a valid sentence imposed in 1941, will likewise have to be set aside and new sentences imposed upon the defendant as a first felony offender on each of such convictions ( People v. Weinberger, 21 A.D.2d 353, affd. 15 N.Y.2d 735). If, however, the resentence on the 1941 conviction is imposed nunc pro tunc as of that time, the subsequent sentences would remain unaffected ( People ex rel. Naumo v. Jackson, 1 A.D.2d 743; People v. Manieri, 4 Misc.2d 567; People v. Wright, 46 Misc.2d 395) with the exception that, if a suspended sentence is imposed on that conviction, even though it be imposed nunc pro tunc, the defendant's sentence in 1957 as a third felony offender would have to be set aside or corrected ( People v. Begue, 1 A.D.2d 289, 293-294), for a suspended sentence may not be used to make one a third felony offender ( People v. Shaw, 1 N.Y.2d 30; People ex rel. Zangrillo v. Doherty, 40 Misc.2d 513, supra; cf. People ex rel. Marcley v. Lawes, 254 N.Y. 249, 251; People v. Weinberger, supra). Under the circumstances, the motion is granted to the extent above indicated without prejudice to further proceedings by the defendant against the 1944 and 1957 sentences if, by virtue of the rese

  8. Matter of O'Neill v. Dept. of State

    47 Misc. 2d 16 (N.Y. Sup. Ct. 1965)   Cited 2 times
    In Matter of O'Neill v. Department of State, 47 Misc.2d 16, 261 N.Y.S.2d 937 (1965), the question involved the revocation of a real estate broker's license.

    It is well established in New York that the word "conviction" is of equivocal meaning and its use in a statute "may vary with the particular statute involved. It presents a question of legislative intent" ( Matter of Richette v. New York State Bd. of Parole, 300 N.Y. 357, 360; see, also, People ex rel. Marcley v. Lawes, 254 N.Y. 249, 254; People v. Weinberger, 21 A.D.2d 353, affd. 15 N.Y.2d 735). In the landmark case of People v. Fabian ( 192 N.Y. 443) the question was whether the defendant who had previously been convicted of burglary and had received a suspended sentence, had been "convicted" under the Constitution, which mandated that the Legislature "enact laws excluding from the right of suffrage all persons convicted of bribery".

  9. People v. Wright

    46 Misc. 2d 395 (N.Y. Cnty. Ct. 1965)   Cited 1 times

    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, affd. 15 N.Y.2d 735). 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.