Opinion
December 23, 1955
Present — Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ.
This appeal is taken by John Naumo from an order of the Supreme Court at Special Term, entered in Clinton County on April 20, 1955, which dismissed a writ of habeas corpus. On June 4, 1934, the appellant was convicted of burglary in the third degree in Bronx County and was sentenced to an indeterminate term of one to two years. On April 27, 1939, he was convicted of robbery in the second degree in New York County, for which he was sentenced as a second offender to an indeterminate term of twenty to forty years, five to ten years being added because the crime was committed while armed. April 2, 1940, the appellant was sentenced from Onondaga County Court as a third offender to an indeterminate term of seven to ten years. Appellant does not question the latter conviction and sentence. His contention is that because he was brought back to Bronx County on a writ of coram nobis on the first conviction and resentenced for the same term as originally imposed, that the 1934 judgment of conviction could not be used as a basis for making him a second offender in 1939. In the coram nobis proceeding the court deliberately said that the motion for resentence was granted only and imposed the same sentence nunc pro tunc as of June 22, 1934. This resentencing was only necessary because the clerk failed to ask the defendant at the time of the original sentence whether he had any legal cause to show why judgment should not be pronounced. Clearly there was a judgment of conviction existing at the time the 1934 offense was used as a prior offense on the 1939 sentence. It is equally clear the defendant is presently confined under the judgments of courts of competent jurisdiction of the offenses and of the defendant. Under such circumstances the court below was required to dismiss a writ of habeas corpus. (Civ. Prac. Act, § 1252; People ex rel. Carr v. Martin, 286 N.Y. 27; Matter of Morhous v. New York Sup. Ct., 293 N.Y. 131. ) Order unanimously affirmed.