SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 14, 1969
THE PEOPLE OF THE STATE OF NEW YORK EX REL. JAMES DANIELS, JR., APPELLANT,
WARDEN, QUEENS HOUSE OF DETENTION, RESPONDENT
In a habeas corpus proceeding (erroneously treated as a duplication of a coram nobismotion which had been previously denied) with respect to a judgment of the Supreme Court, Queens County, rendered January 24, 1964, convicting appellant of murder in the second degree, on his plea of guilty, the proceeding being predicated on the ground that at the time of the acceptance of the plea appellant was not afforded the warning prescribed in section 335-b (now § 335-c) of the Code of Criminal Procedure, the appeal is from an order of said court dated September 14, 1967 which denied the application.
Beldock, P. J., Christ, Hopkins, Munder and Kleinfeld, JJ., concur.
In our opinion, section 335-b of the Code of Criminal Procedure (now § 335-c) was inapplicable to the crime of murder in the second degree to which relator pleaded guilty. This crime was punishable under section 1048 of the former Penal Law, which contained no prescription or express authorization for different or additional punishment predicated on a prior conviction as contemplated by said section 335-b. Nor, in view of the provision in said section 1048 for a maximum sentence of life imprisonment, may any minimum imposed in excess of the 20-year minimum therein set forth be deemed different punishment so as to render section 335-b applicable (People v. Buckley, 178 Misc. 545; People v. Martin, 52 Misc. 2d 571; see, also, People v. Washington, 264 N. Y. 338).
Order affirmed, without costs. While the application was erroneously treated as above noted, we have considered the application in its habeas corpus perspective and find it to be without merit.
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