Opinion
June 29, 1945.
Appeal from Ulster Special Term.
Relator attacks his conviction and incarceration on the ground, as he asserts, that he was twice placed in jeopardy. The indictment charged him with robbery, first degree. He was arraigned on October 20, 1938; the district attorney consented to accept a plea of guilty to grand larceny, second degree, upon the statement of relator that he had previously been convicted in Kings County of grand larceny. The pronouncing of judgment and sentence was deferred to October 24th. The district attorney having learned that defendant's previous conviction was for a misdemeanor, on October 24th stated that he was unwilling to accept a plea to grand larceny, second degree. Defendant entered a plea of not guilty, counsel was assigned and the matter adjourned to November 21st, at which time, upon defendant's plea of guilty to grand larceny, first degree, his counsel asked for leniency, and the court pronounced judgment and sentence. The court had power, in view of the misstatement by the defendant, to set aside the plea of guilty to grand larceny, second degree, it being represented by the district attorney that he was led to consent because of the misstatement and deceit of defendant. ( Matter of Lyons v. Goldstein, 290 N.Y. 19; Code Crim. Pro., § 337.) If any issue exists concerning the legality of the procedure, it may not be raised by habeas corpus. ( People ex rel. Hubert v. Kaiser, 206 N.Y. 46.) Order affirmed. All concur. [See post, p. 913.]