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People ex Rel. Stewart v. Wilson

Appellate Division of the Supreme Court of New York, Third Department
Jul 11, 1939
257 App. Div. 555 (N.Y. App. Div. 1939)

Opinion

July 11, 1939.

Appeal from Supreme Court of Washington County.

Harley J. Stewart, relator in person.

John J. Bennett, Jr., Attorney-General [ Patrick H. Clune and Everett D. Mereness, Assistant Attorneys-General, of counsel], for the respondent.


Appellant contends that he was improperly sentenced as a second offender upon conviction after a plea of guilty of the crime of attempting to commit burglary in the third degree. The certificate of conviction shows that after the conviction an information was filed charging him with having been previously convicted of a felony, that he was properly informed of his rights in connection therewith and stood mute. A jury was thereupon impaneled and found that he was the same person thus previously convicted and he was then sentenced as a second offender. The criminal record attached to the return reveals that this previously conviction was for sodomy, for which he received a sentence of two years at a Federal prison. According to the brief for appellant this conviction was had in a court-martial of the United States Army.

The statute (Penal Law, § 1941) directs additional punishment as a second or third offender for a person who has previously been once or twice convicted within this State of a felony, or under the laws of any other State, government or country of a crime which, if committed within this State, would be a felony. Sodomy is a crime in this State. (Penal Law, § 690.) Appellant urges that a conviction by a court-martial of the United States is not such a conviction as comes within the purview of section 1941 of the Penal Law because in such court there is no indictment, the court is composed of army officers instead of persons skilled in the law and appeals from its determinations are greatly restricted. We see no merit in these contentions. The military courts are lawful tribunals. The previous conviction here was by a court of competent jurisdiction established by the Federal government for a crime which if committed within this State would be a felony. The conviction is no less valid because of differences in procedure.

The order should be affirmed.

HILL, P.J., CRAPSER and HEFFERNAN, JJ., concur.

Order affirmed.


Summaries of

People ex Rel. Stewart v. Wilson

Appellate Division of the Supreme Court of New York, Third Department
Jul 11, 1939
257 App. Div. 555 (N.Y. App. Div. 1939)
Case details for

People ex Rel. Stewart v. Wilson

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK ex rel. HARLEY J. STEWART, Appellant…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jul 11, 1939

Citations

257 App. Div. 555 (N.Y. App. Div. 1939)

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