Opinion
April 5, 1943.
Appeal from County Court, Queens County.
Present — Close, P.J., Hagarty, Carswell and Johnston, JJ.; Adel, J., not voting.
Judgment modified on the law by striking out the first paragraph of the commitment and inserting in place thereof the following paragraph: "Frank Irwin having been indicted for the crimes of robbery, 1st degree, grand larceny, 1st degree, and assault, 2nd degree, committed as fourth offenses, and having been convicted, as charged in the indictment, by the verdict of a jury, and it appearing that one of the prior convictions charged in the indictment was followed by a suspended sentence and therefore may not be counted as one of four convictions for the purpose of sentence as a fourth offender, the said Frank Irwin is therefore sentenced as a second offender." As thus modified the judgment, insofar as appealed from, is unanimously affirmed. The appellant was indicted and tried for robbery, larceny and assault as a fourth offender, and was found by the jury to be guilty as charged in the indictment. He was thereupon sentenced to life imprisonment on October 28, 1927. It appears that one of the prior convictions recited in the indictment and proved on the trial was followed by a suspended sentence and it therefore should not have been counted as one of four convictions, for which a life sentence was mandatory. ( People ex rel. Marcley v. Lawes, 254 N.Y. 249, decided July 8, 1930.) Upon motion for resentence, the County Judge on June 5, 1942, sentenced the appellant as a second offender to life imprisonment as of October 28, 1927. We find the following: (1) The court had the power to impose sentence as for conviction as a second offender. ( People v. Meshel, 245 App. Div. 673.) (2) Under the statutes in effect at the time of the commission of the crimes and at the time of the trial and sentence, the court had power, in its discretion, to impose a life term upon conviction of the crimes charged as second offenses (Penal Law, § 2125, as amd. L. 1926, ch. 436; Penal Law, § 2191; Penal Law, § 1941, as amd. L. 1920, ch. 371, and L. 1926, ch. 457), and that such discretion was exercised in the imposition of the sentence herein.