People ex rel. Zuckman v. La Vallee 9 A.D.2d 842

Appeal from an order denying an application for a writ of habeas corpus. At a Regular Term of the Albany County Court held on January 15, 1959, the relator, through his attorney [same as on appeal] entered a plea of guilty to the second count of an indictment which charged the relator with sodomy in violation of section 690 of the Penal Law of the State of New York committed as follows: “ The said defendant at the same time and place set forth in the First Count of this indictment, did wilfully, wrongfully and feloniously carnally known by the mouth of a female child, to wit: Diane Wood of the age of eight (8) years.” On this appeal, relator makes the fallacious argument that he pied guilty to a misdemeanor paragraph of section 690 and contends that he is entitled to the relief under habeas corpus because his sentence was for a term longer than *843that authorized by the statute. In this respect he is in error as the sentence given was well within the time limitations of sodomy as a felony. He is not entitled to relief by a writ of habeas corpus. The pleaded words of the indictment may reasonably be read as charging the acts of a felony. There is no allegation that the petitioner understood or intended to plead to a misdemeanor count. No demurrer was filed to the indictment, clarification sought by a bill of particulars or motion made in arrest of judgment. An eight-year-old child does not offer resistance as it does not know the nature of the act and cannot consent because of its immaturity. The facts were sufficiently alleged to apprise the defendant of the crime and degree charged. (People v. Oliver, 3 N Y 2d 684, 686.) Habeas corpus is not the proper remedy and there is no merit to the argument advanced. Order unanimously affirmed, without costs. Present — Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ.