People v. Vischi

Appeal from an order of the County Court of Chenango County at Special Term denying defendant’s motion, upon an application in the nature of coram noUs, to vacate his sentence as a second offender. On November 25, 1940, in the County Court of Chenango County, upon conviction of the crime of burglary in the third degree, appellant was sentenced to imprisonment as a second felony offender. The claimed previous felony conviction was in the County Court of Oneida County in 1935, upon a charge of grand larcency in the first degree, and resulted in appellant’s commitment to the Institution for Male Mental Defective Delinquents at Napanoch. Appellant contends that his plea of guilty in Oneida County and his commitment to Napanoch did not constitute a prior conviction within the meaning of section 1941 of the Penal Law. His contention is untenable. (People ex rel. Mucciolo v. Snyder, 295 N. Y. 866.) If the commitment to the institution at Napanoch was improper or defective, appellant’s remedy must be pursued in the County Court of Oneida County and his application was not properly made in Chenango County. (People v. Wurzler, 300 N. Y. 344.) Order unanimously affirmed. Present — Foster, P. J., Bergan, Coon, Zeller and Gibson, JJ.