People ex rel. Smith v. Murphy 256 A.D. 860

Appeal from an order of the Special Term, entered April 11, 1938, in the Clinton county clerk’s office, dismissing a writ of habeas corpus, and remanding the prisoner. The relator was sentenced to Sing Sing on a plea of guilty to an indictment charging him with the possession of burglar tools, after a previous conviction of felony. According to the relator’s brief he had been convicted of four previous felonies. The district attorney filed an information charging these various convictions, and the relator admitted his identity. Thereupon he was sentenced under section 1942 of the Penal Law. The relator now asserts that the possession of burglar tools, under section 408 of the Penal Law, in and of itself, is but a misdemeanor, and that he should have been sentenced under section 1935, despite the fact that section 408 provides that it shall be a felony if the accused “ has been previously convicted of any crime.” Section 408 of the Penal Law prescribed the conditions under which the possession of burglar tools shall be a misdemeanor or a felony. And relator’s contention that he was not guilty of a“ true ” felony is without merit. Sections 1935 and 1942 do not prescribe crimes, but provide for punishment. The Special Term was correct in dismissing *861the writ and remanding the prisoner. (People v. Coleman, 237 App. Div. 211; 261 N. Y. 662; 240 App. Div. 947; 264 N. Y. 536; People v. Heath, 237 App. Div. 209; People ex rel. Costa v. Wilson, 161 Misc. 421.) Order unanimously affirmed, without costs. Present — Hill, P. J., Rhodes, MeNamee, Bliss and Heffernan, JJ.