Opinion
November 16, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal from an order of the Supreme Court entered in Clinton County which dismissed, after a hearing, petitioner's application for a writ of habeas corpus on the ground that his sentence as a second felony offender was invalid in that the alleged prior conviction was of a misdemeanor. The previous offender information charged defendant's prior conviction "upon his own confession and plea of guilty of the crime of Attempt Possession of Burglar's Instrument as a felony" (emphasis supplied). Petitioner's contentions that such an offense is a misdemeanor because it is not defined as a felony and because no punishment is prescribed therefor are without merit. (Penal Law, §§ 408, 2, 261.) Order unanimously affirmed, without costs.