p. 175SUPREME COURT—APP. DIVISION—SECOND DEPT.,THE PEOPLE v. HARRY S. BRETTON.Headnote
(1.) Larceny—Penal Law, § 1942, Sentence after plea of guilty of FIRST OFFENSE.Where a defendant has pleaded guilty to grand larceny, second degree, as a first offense, the court has no power to impose a life sentence under section 1942 of the Penal Law, although it be shown by the defendant’s answer to interrogatories that he has been convicted and sentenced four times for felony.
(2.) Same—Code Grim. Pro., § 543, Correction of erroneous judgment.
Under section 543 of the Code of Criminal Procedure the Appellate Division has power to correct such erroneous judgment of conviction when entered upon a lawful verdict.
Appeal by the defendant, Harry S. Bretton, from a judgment of the Oounty Court of Queens county, rendered against him on .the 7th day of April, 1910, upon a plea of guilty to grand larceny, second degree, as a first offense, on an indictment charging the commission of grand larceny in the second degree as a second offense.
Moses A. Sachs, for the appellant.
Fred C. De Witt, District Attorney, for the respondent.
The defendant was indictment with the crime of grand larceny in the second degree as a second offense.
p. 176defendant 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 ofíense, and on the 7th day of April, 1910, it having been shown to the court by the defendant’s answer to interrogatories that the latter had been convicted of crime and sentenced to States prison four times, the defendant was ¡sentenced to imprisonment for his natural life. This is the penalty imposed by section 1942 of the Perial Law where the defendant has been convicted for a fourth ofíense .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 an habeas corpus, and pointed out that the conviction was regular and unquestioned, the judtgment 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 oases 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,” andl this seems to be the proper course here. Ho 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 he 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., Hibschbubg, Bubb, Woodwaed and Rich, JJ., concurred.
Sentence set aside, and defendant to be brought before tbi® court for resentence for the crime of grand larceny in the second degree as a first offense.