People ex rel. Newcombe v. La Vallee

Appeal from a judgment of the Supreme Court, Clinton County, dismissing appellant’s writ of habeas corpus, after a hearing. Appellant urges here that since he received a suspended sentence on his first felony conviction in 1963, this conviction could not constitute a lawful predicate for second felony treatment on his subsequent felony conviction in 1964. We cannot agree. In People v. Shaw (1 N Y 2d 30), the Court of Appeals noted that section 470-b of the Code of Criminal Procedure and section 1941 of the Penal Law, when read together, make it clear that a prior conviction and suspended sentence properly form the basis for treating a subsequently convicted felon as a second offender (see, People v. Weinberger, 21 A D 2d 353, affd. 15 N Y 2d 735). Judgment affirmed, without costs. Herlihy, P. J., Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur in memorandum by Reynolds, J.