People v. Callahan

Surrogate and Acting County Judge. By way of writ of error coram, nobis, defendant seeks to have his sentence as a second felony offender set aside and be re-sentenced as a first offender.

In April, 1938, defendant, upon his plea of guilty to burglary in the third degree, received a suspended sentence. Again, on April 20, 1939, defendant plead guilty to the crime of burglary in the third degree. The District Attorney thereupon filed an information accusing defendant of a prior felony conviction, (the conviction for burglary third degree in 1938). The defendant admitted his identity, was adjudged by the court to be a second felony offender, and sentenced as such to not less than

The question presented is whether or not one who has twice been convicted of felonies, but has received a suspended sentence upon the first or prior conviction, can be prosecuted as a second felony offender.

The People contend that the District Attorney could have proceeded either by way of indictment or by way of information, relying upon People v. De Santis ( 305 N. Y. 44 , 48). However, a reading of the De Santis decision shows that the point then decided by the Court of Appeals was not at all similar to the question now under consideration. ‘ ‘ No opinion is an authority beyond the point actually decided ’ ’. This is an oft repeated declaration of our Court of Appeals. Therefore I do not consider the De Santis case to be controlling in this proceeding.

Nevertheless, it is clear from a reading of section 1943 of the Penal Law and section 470-b of the Code of Criminal Procedure and the recent memorandum decision of the Appellate Division, Second Department, made in People v. Hunter ( 3 A D 2d 926 ) that, under the circumstances of this case, the District Attorney could “ proceed either by way of indictment or by way of information after indictment to increase the punishment with respect to a second felony offender, whether sentence had been imposed or suspended upon the first felony conviction.”

The delay by this court in rendering a final decision upon this application was deliberate. I believed the wiser course to be to delay decision until our learned higher court had spoken in the Hunter case. I am satisfied that I pursued such course and might add that the decision in the Hunter case is the first answer that has been given to the precise question presented here and which I now decide.

The application of defendant is denied. Submit order.