The People of the State of New York, Respondent, v. James Garcia, Appellant

The People of the State of New York, Respondent, v. James Garcia, Appellant. [MAJORITY] Defendant was duly convicted of forgery, second degree, as a fourth offender in the County Court of Broome County on September 19, 1938. Produced before the County Court of Wyoming County on March' 25, 1946, on a writ of habeas corpus, it was determined that one of defendant’s prior felony convictions which had been- counted to constitute him a fourth offender was for an offense which, if committed in New York State, would not be a felony, and the writ of habeas corpus was in effect sustained and relator remanded to the custody of the sheriff of Broome County for-resentence. Such resentence .was pronounced by the County Court of Broome County on August 8, 1946, upon defendant’s aforesaid conviction as a third offender. Defendant contends that the judgment of conviction appealed from is erroneous because of former jeopardy and further because of the omission of the resentencing court to have expressly granted the district attorney’s motion to vacate the former sentence. As to the first point the adjudication of the illegality of the fourth offender sentence did not oust jurisdiction to correct same by the proper resentence. As to his second point, when he was produced for resentence his former fourth offender sentence had been invalidated by a court of competent jurisdiction and if any other way to vacate it was required by the sentencing court, such was effectively accomplished by the passing of the resentence, the district attorney having previously moved to vacate the former sentence and for the passing of resentence. Judgment of conviction affirmed. All concur.