Opinion
November 10, 1958
Present — Foster, P.J., Bergan, Gibson, Herlihy and Reynolds, JJ.
Appeal by relator from an order of the Supreme Court, Special Term, Washington County, which dismissed a writ of habeas corpus. Relator was convicted of the felony of attempted burglary in the third degree and sentenced, as a second felony offender, to imprisonment under an indeterminate sentence, the maximum of such imprisonment to be 10 years and the minimum thereof 8 years. Burglary in the third degree is punishable by imprisonment for a term not exceeding 10 years. (Penal Law, § 407, subd. 3.) Conviction of an attempt to commit that crime would authorize imprisonment for not more than half that term (Penal Law, § 261) or 5 years, in the case of a first offender. As a second felony offender, relator was required to be "sentenced to imprisonment for an indeterminate term, the minimum of which shall be not less than one-half of the longest term prescribed upon a first conviction, and the maximum of which shall be not longer than twice such longest term." (Penal Law, § 1941, subd. 1.) The sentence imposed was, therefore, proper. Appellant's contention seems to be that a second offender's minimum sentence may not exceed one half of the longest term prescribed upon a first conviction but, as has been noted, the statute provides that the minimum shall be " not less than one-half" of such longest term. Order unanimously affirmed, without costs.