The People of the State of New York, Respondent, v. Harry S. Bretton, Appellant

The People of the State of New York, Respondent, v. Harry S. Bretton, Appellant. Second Department, April 28, 1911. Crime — larceny.—sentence j after, plea of guilty of first ofíense — life sentence — court — appeal — correction of erroneous judgment. 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 Peiiál Daw, although it be shown by the defendant’s answer to interrogatories jthat he ■ has been convicted and sentenced four times for felony. , 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 County 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 indict-ment charging the commission of grand larceny in the second degree as a second offense. . Moses A. Sachs, for the appellant. Fred G. De Witt, District Attorney., for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The defendant' was charged by indictment with, the Crime of grand larceny in' the second degree as a second offense. The defendant originally pledded not guilty, but subsequently withdrew this plea,, and on tlie 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 janswers 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 jfche 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.