
    The People of the State of New York, Plaintiff, v. Henry A. Seager, Defendant.
    County Court, Monroe County,
    March 13, 1958.
    
      
      Henry A. Seager, defendant in person.
    
      Harry L. Rosenthal, District Attorney (John A. Mastrella of counsel), for plaintiff.
   George D. Ogden, J.

Defendant was convicted September 19, 1956 of a violation of section 483-b of the Penal Law — carnal abuse of a child; defendant had previously been convicted of sodomy in the first degree, and was thereupon sentenced as a second felony offender. Defendant’s first motion — to set aside the jury’s verdict of guilty of the present charge — is, in all respects denied, as the defendant could have raised any question regarding such conviction by the appropriate remedy of an appeal.

The crime of which the defendant was convicted became a felony through operation of law. A violation of section 483-b is a misdemeanor unless the person violating that section has previously been convicted of certain misdemeanors or felonies, including sodomy, when the violation becomes a felony. Since defendant had previously been convicted of a felony, he became a second felony offender, and the sentence imposed was correct. (See People v. Jarvis, 260 App. Div. 834.) Defendant’s application for a resentence is, in all respects, also denied.

Submit order.  