Opinion
January 22, 1931.
Appeal from Supreme Court of Cayuga County.
Harry M. Stacy, for the appellant.
James F. Quigley, for the respondent.
All concur. Present — SEARS, P.J., CROUCH, EDGCOMB, THOMPSON and CROSBY, JJ.
We agree with the Special Term that "the plea and sentence upon these two indictments were simultaneous." The rule in People v. Bergman ( 176 App. Div. 318; appeal dismissed, 220 N.Y. 704) is, therefore, applicable. Informal information in the possession of the trial judge, relating to relator's past career, of which no legal proof is offered and no record is made at the time of plea and sentence, affords no basis for a disregard of the mandatory provisions of section 2189 of the Penal Law (as amd. by Laws of 1919, chap. 411).
The conviction is still valid, however, and the prisoner is not entitled to his discharge. Following a well-settled practice (See People ex rel. Devoe v. Kelly, 97 N.Y. 212; People ex rel. Marcley v. Lawes, 254 id. 249), the writ should be dismissed and the prisoner returned to the County Court for resentence. Since the order appealed from did not in terms dismiss the writ, it should be modified to that extent and as modified affirmed.
Order modified by inserting a provision dismissing the writ of habeas corpus and as modified affirmed.