Opinion
March 8, 1950.
Appeal from Supreme Court, Clinton County.
On April 18, 1937, petitioner was convicted on his plea of guilty in a Court of Special Sessions, held by a Justice of the Peace, of disorderly conduct, the act being, according to the certificate of conviction, that he had attempted to have sexual intercourse with a girl under the age of twelve years. He was sentenced to the Onondaga Penitentiary for six months and fined $10. On May 17, 1937, a petition for habeas corpus was presented on behalf of the petitioner to Mr. Justice BREWSTER alleging the Court of Special Sessions was without jurisdiction of the offense and on May 29, 1937, Judge BREWSTER sustained the writ and discharged the petitioner. Petitioner was then indicted for the crime of attempted rape, second degree, on the same facts that were considered at Special Sessions and he was tried and convicted in the Essex County Court and his sentence suspended. No suggestion was then made by petitioner of prior jeopardy. Nine years later, July 31, 1946, he was convicted of assault in the second degree and sentenced to two and a half to ten years but, being returned by the prison authorities for proper sentence as a second offender, he was resentenced on February 11, 1948, to an indeterminate term of five to six years. He has been discharged because the conviction for rape in the second degree of 1937 has been treated as invalid, the petitioner having been said to have been in jeopardy for the same offense in the Court of Special Sessions. But the Court of Special Sessions did not have jurisdiction of the offense which as described in the certificate of conviction was a felony, and it was determined judicially on petitioner's own application by Mr. Justice BREWSTER that the Special Sessions had no jurisdiction. This determination in petitioner's favor was binding upon him on the question of the jurisdiction of the Special Sessions. If it had no jurisdiction, of course, petitioner was not in jeopardy and the County Court had full power to convict him for the first felony. The order sustaining the writ of habeas corpus is reversed on the law. Foster, P.J., Heffernan, Bergan and Coon, JJ., concur; Brewster, J., taking no part.