
    The People of the State of New York, Respondent, v. John Stewart, Appellant.
    County Court, Jefferson County,
    December 18, 1961
    
      Gordon J. Phillips for appellant. Angus G. Saunders, District Attorney (Robert M. Weldon of counsel), for respondent.
   Milton A. Wiltse, J.

Defendant was convicted upon his plea of guilty of violation of section 501 (subd. 4, par. a) of the Vehicle and Traffic Law, a misdemeanor, before the Honorable Chester A. Paul, Justice of the Peace of the Town of Pamelia, on November 19, 1961. On the same date, he was sentenced to imprisonment in the Jefferson County Jail for 180 days.

From the judgment of conviction, he has appealed.

Several errors are alleged. Only one of same is herein discussed, namely, that the sentence was excessive. The other errors are controverted by the return.

As to the sentence, section 1801 of the Vehicle and Traffic Law sets forth the penalty for this violation of the law. For a first conviction, the maximum penalty provided is a fine of not more than $100 or imprisonment for not more than 30 days, or both such fine and imprisonment. More severe punishment may be imposed for a second or third conviction within 18 months after the first conviction.

Should it preliminarily appear that a defendant may have been previously convicted, a procedure for determining that question, and invoking the punishment additional to that provided upon a first conviction, is prescribed in section 717 of the Code of Criminal Procedure. This was not done.

Only one conviction appearing on the record here, the defendant should have been sentenced for a first conviction.

The sentence imposed exceeded that which is expressly authorized by statute. With this view, the District Attorney agrees.

On the law, the judgment should be modified as follows: The defendant is sentenced to imprisonment in the J efferson County Jail for 30 days, and in addition thereto, to pay a fine of $25, and be imprisoned until the fine is satisfied, not to exceed 25 days.  