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In 1962, a defendant was sentenced by a New York City Judge

In 1962, a defendant was sentenced by a New York City Judge as a second felony offender for a crime to which the defendant had not pleaded guilty. The basis of this motion is that the defendant declares that the present sentence, as it now stands, is erroneous, and therefore, the court issue an order for the purpose of correcting the record.

According to reports, the defendant’s contention is that the previous conviction should not have been for the lesser crime of an attempt feloniously to possess a narcotic drug, but should have been for its felonious possession, the higher crime, the one to which he states that he had actually pleaded. In the minutes of a pleading disclose in 1952, the defendant, in the presence of his attorney, had pleaded guilty to the crime of the felonious possession of a narcotic drug and he was sentenced Elmira Reformatory. The item sheet attached to the indictment indicates by an entry thereon that the acceptance of the plea of an attempt feloniously to possess a narcotic drug was recommended by the district attorney. On the other hand, the official court record indicates, by an entry therein, that the plea had been taken to the lesser crime of an attempt feloniously to possess a narcotic drug.

With the reports presented and viewing the argument presented by defendant in the most favorable light and accepting what he insists upon, and that is, that he had not pleaded to the lesser degree of the crime for which he was sentenced, he still would not, in the circumstances of the case, be entitled to be accorded the relief he seeks.

Both the felonious possession of a narcotic and an attempt feloniously to possess, though the latter is of a lesser degree, are as the language indicates felonies.

With this statutory law in view, the defendant, although having allegedly pleaded guilty to the higher degree of the crime, but having been sentenced on the lesser degree instead of on the higher degree, has really no persuasive legal reason for complaint that his constitutional rights had been violated. A malefactor is in no favorable position to find fault when he is charged with the lower of the alleged offenses involved instead of the higher one, and, when, as a result, he receives a benefit. In the borrowed language of the court, it is hardly becoming for the defendant to urge, that he had committed a higher crime, and ought to be more severely punished.

It would be beyond judicial function or judicial duty to act upon the sentence imposed, in as much as both the crime of possession and the attempt to possess, as heretofore noted, are felonies, and, in as much as it cannot be disputed that defendant has become the recipient of a profitable goodness by laxity of the nature of the prior sentence, which itself is not void, and which, in turn, does not make the multiple sentence void. Furthermore, the statement made by district attorney in his opposing affidavit, wherein he remarks that in either instance, the defendant would have been sentenced as a second felony offender the end result necessarily would have been the same.

Moreover the present motion is merely a repetition of the same kind of prior motion, dated October 21, 1959, which was denied. In that instance, the defendant took no further legal steps regarding the disposition of that motion.

Both on the lack of merits and on the failure of the present motion to meet the legal requirements for a renewal, it was concluded that the motion be denied.

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