April 28, 1911.
Moses A. Sachs, for the appellant.
Fred G. De Witt, District Attorney, for the respondent.
The defendant was charged by indictment with the crime of grand larceny in the second degree as a second offense. The defendant originally pleaded not guilty, but subsequently withdrew this plea, and on the 28th day of March, 1910, entered a plea of guilty to grand larceny, second degree, as a first offense, and on the 7th day of April, 1910, it having been shown to the court by the defendant's answers to interrogatories that the latter had been convicted of crime and sentenced to State prison four times, the defendant was sentenced to imprisonment for his natural life. This is the penalty imposed by section 1942 of the Penal Law where the defendant has been convicted for a fourth offense amounting to a felony, and is clearly not justified where the defendant has pleaded guilty of a lesser offense. ( People ex rel. Bretton v. Schleth, 68 Misc. Rep. 307, 308.) The authority cited, while holding the proposition, held that the case was not one to be disposed of on habeas corpus, and pointed out that the conviction was regular and unquestioned, the judgment entered being merely irregular and voidable.
Section 543 of the Code of Criminal Procedure provides that "upon hearing the appeal the appellate court may, in cases where an erroneous judgment has been entered upon a lawful verdict, or finding of fact, correct the judgment to conform to the judgment or finding," and this seems to be the proper course here. No question is raised as to the trial; the defendant pleaded guilty to a distinct crime for which a penalty is prescribed, and the judgment should be corrected and sentence imposed by this court in accordance with section 543 of the Code of Criminal Procedure. (See People v. Griffin, 27 Hun, 595.)
JENKS, P.J., HIRSCHBERG, BURR, WOODWARD and RICH, JJ., concurred.
Sentence set aside, and defendant to be brought before this court for resentence for the crime of grand larceny in the second degree as a first offense.