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The People of the State of New York, Plaintiff,<BR> v. <BR>Ir

LEIBOWITZ, J.

Miles F. McDonald, District Attorney (William I. Siegel of counsel), for plaintiff. David F. Price for defendant. LEIBOWITZ, J. In 1947 the defendant was convicted in this court of a felony. He was thereupon sentenced as a third felony offender; the two prior alleged felonies being, the first, in the State of Illinois in 1930, and the second, in the Court of General Sessions of the County of New York in 1933. parts of a judgment of conviction. At page 542, I said: "The judgment of the court in a criminal case serves two functions. First, it makes a judicial determination of guilt, based either upon the verdict rendered by the jury or a plea of guilty; and secondly, it imposes the penalty for the transgression." When the Court of General Sessions of the County of New York resentenced the defendant in 1952, it added that the resentence was "nunc pro tunc as of June 8, 1933". This addition was, in my opinion, mere surplusage. The resentencing of the defendant in 1952 did not, in the slightest, disturb the final adjudication and determination of guilt made in 1933, as aforesaid (Hendricks v. Ergis, 66 N. Y. S. 2d 349). The defendant's motion for resentence as a first felony offender must, therefore, be denied. However, since the defendant's conviction in 1930 in Illinois is no longer recognized as a felony conviction in New York, the defendant is now, in law, a second felony offender and may be resentenced, as such, by this court. Such relief must be sought by a new motion. Submit order accordingly.

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People v. Cohen
(Feb 6, 1953)