Opinion
December 1, 1960
Appeal from the Onondaga County Court.
Present — Williams, P.J., Bastow, Halpern, McClusky and Henry, JJ.
Order unanimously reversed and proceeding remitted to the Onondaga County Court for a hearing. Memorandum: Petitioner alleges that he stands convicted, on his plea of guilty, of the crime of sodomy in the second degree, whereas he was indicted for that crime in the first degree only. Sodomy, second degree, is not necessarily an included crime or an inferior degree of the crime of sodomy, first degree ( People v. Cipolla, 7 A.D.2d 698, affd. as to this ground and reversed in part on other grounds 6 N.Y.2d 922). He may well have been convicted of a crime of which he had not been indicted contrary to the provisions of section 6 of article I of the Constitution of the State of New York. The appropriate remedy in this situation, if there is any, is unclear under the authorities ( Matter of Lyons v. Ward, 272 App. Div. 120, affd. 297 N.Y. 617, affd. sub nom. Paterno v. Lyons, 334 U.S. 314; People ex rel. Wachowicz v. Martin, 293 N.Y. 361; People v. Englese, 7 N.Y.2d 83, 87; People ex rel. Guido v. Calkins, 10 A.D.2d 510; People ex rel. Tracher v. Martin, 268 App. Div. 955; People ex rel. Hornbeck v. Jackson, 6 A.D.2d 924; People ex rel. Tesseyman v. Murphy, 8 A.D.2d 682; Tesseyman v. State of New York, 21 Misc.2d 534; People ex rel. Cooper v. Martin, 5 A.D.2d 736; People v. Paterno, 187 Misc. 56). No counsel was assigned in the proceeding by the trial court or by this court upon appeal. A hearing should be held, counsel assigned, if requested, and the facts and the law fully explored at the trial level.