Opinion
December 10, 1964
Appeal from the Cayuga County Court.
Present — Williams, P.J., Bastow, Goldman, Henry and Noonan, JJ.
Order unanimously reversed on the law, writ dismissed, and relator remanded to the custody of the Warden of Auburn Prison. Memorandum: The Warden of Auburn Prison appeals from an order of Cayuga County Court which sustained a writ of habeas corpus, vacated a sentence imposed upon relator as a second felony offender and directed that he be resentenced as a first felony offender. The basis for sustaining the writ was the County Court's determination that deferment of sentence, together with probation, did not constitute a legal conviction on a first felony so as to invoke section 470-b of the Code of Criminal Procedure for the purpose of conviction as a second felony offender. Section 470-b provides that "For the purpose of indictment and conviction of a second offense, the plea or verdict and suspension of sentence * * * shall be regarded as a conviction". Relator's contention, as set forth in his petition, is that a "deferred" sentence is not a "suspended" sentence within the meaning of section 470-b. Any doubt in this respect was resolved by the Court of Appeals in People v. Shaw ( 1 N.Y.2d 30). Chief Judge CONWAY in the prevailing opinion, at page 31, in referring to the defendant's "deferred" sentence stated: "Upon that conviction he received a sentence which we construe to be a suspended one." The dissenting opinion of Judge FULD concurred in this construction in the footnote at page 37 where he wrote "in its context, `deferred' meant `suspended.'" We are not here concerned with postponement of sentence for indefinite period. ( Matter of Hogan v. Bohan, 305 N.Y. 110, 112-113; cf. Code Crim. Pro., § 933.) The deferred sentence and the placing of relator under probation upon his conviction for the first felony resulted in relator being properly classified as a second felony offender pursuant to the provisions of section 470-b of the code.