
    The People of the State of New York ex rel. Ralph La Shombe, Respondent, against J. Vernel Jackson, as Warden of Clinton Prison, Appellant.
   Appeal from an order of a Special Term, County Court, Clinton County. On October 14, 1947 relator was convicted in St. Lawrence County Court of assault, second degree. The petition for the writ of habeas corpus alleges, without any pleading of fact, the legal conclusion that at the time of sentence” on the 1947 conviction there was [a] failure to comply with the mandate prescribed by Section 472 of the Code of Criminal Procedure ”. On May 23, 1955 relator was sentenced in St. Lawrence County Court under an indictment charging assault, grand larceny, and other crimes, as a second offender, the conviction of 1947 being set up as the first felony offense. The writ of habeas corpus is directed to the 1955 judgment; the County Court has sustained the writ holding that the 1947 judgment is invalid and hence the sentence of 1955 as a second offender is invalid. A failure to allow two days between conviction and sentence, if properly pleaded, would not invalidate the conviction in 1947; it would invalidate the sentence. Even if improperly sentenced in 1947, relator would have been a second offender in 1955. The 1955 judgment under which relator is serving is, therefore, a valid judgment. Under a pleading properly setting forth facts showing a failure to comply with section 472 of the code, relator would be entitled to resentenee on the 1947 conviction; he would not be entitled to vacate the 1955 judgment under which he is serving. Order reversed, and writ dismissed. Foster, P. J., Bergan, Coon, Gibson and Reynolds, JJ., concur,  