Opinion
September 9, 1965
Anthony F. Marra for defendant.
Aaron E. Koota, District Attorney, for plaintiff.
Petitioner was convicted on his own plea of guilty (Jan. 18, 1951) of carrying a dangerous weapon as a felony and was sentenced (Feb. 14, 1951) from 1 year, 3 months to 2 years, 6 months in State prison.
The indictment charged violation of subdivision 5 of section 1897 of the Penal Law. That section then provided: "Any person over the age of sixteen years, who shall have or carry concealed upon his person * * * any pistol, revolver * * * shall be guilty of a misdemeanor, and if he has been previously convicted of any crime he shall be guilty of a felony." The instant indictment charged the felony on the basis of a conviction seven years earlier for petit larceny on June 30, 1943. He received for that crime, however, a suspended sentence.
In this petition he contends that the 1943 conviction for petit larceny was not a "conviction" within the terms of the statute, since he received a straight suspended sentence (cf. People v. Englese, 7 N.Y.2d 83).
He also contends that a seven-year-old conviction could not be used to raise the carrying dangerous weapon charge to felony status.
There are no decisions precisely on the point at issue whether a misdemeanor can be elevated to a felony status if previously the defendant "has been * * * convicted of any crime" when he received a suspended sentence for that prior crime.
However, related issues cast some light on the problem. Such issues are fully discussed by Mr. Justice BASTOW in Matter of Jones v. Kelly ( 9 A.D.2d 395). See, also, cases cited in Judge SCILEPPI'S dissent in People v. Weinberger ( 15 N.Y.2d 735, 736).
On the basis of these decisions and section 470-b of the Code of Criminal Procedure, I conclude that the prior conviction in 1943 was a proper basis for charging the felony under the statute.
I agree with Fryson that a seven-year-old conviction for a misdemeanor should not "in justice" be so used; but attempts to change the law (viz., recent amnesty bills) have been frustrated.
I note that the sentence attacked has long since been served. Petition is denied.