Opinion
January 22, 1970
Appeal from a judgment of the Supreme Court, Clinton County, dismissing appellant's writ of habeas corpus, after a hearing. Appellant urges here that since he received a suspended sentence on his first felony conviction in 1963, this conviction could not constitute a lawful predicate for second felony treatment on his subsequent felony conviction in 1964. We cannot agree. In People v. Shaw ( 1 N.Y.2d 30), the Court of Appeals noted that section 470-b of the Code of Criminal Procedure and section 1941 of the Penal Law, when read together, make it clear that a prior conviction and suspended sentence properly form the basis for treating a subsequently convicted felon as a second offender (see, People v. Weinberger, 21 A.D.2d 353, affd. 15 N.Y.2d 735). Judgment affirmed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur in memorandum by Reynolds, J.