
    The People of the State of New York, Respondent, v. Paul Baldwin, Appellant.
    County Court, Otsego County,
    December 31, 1946.
    
      
      Livingston S. Latham, District Attorney, for respondent.
    
      Warren G. Farrington for appellant.
   Cuetis, J.

The defendant was charged in the City Court of Oneonta with two violations of section 180 of the Labor Law.

It appears from the record that the defendant pleaded guilty, and judgment was rendered that the defendant pay a fine of $250 under section 1275 of the Penal Law.

There is no reference in the record to any prior violations of the Labor Law by the defendant except that the judgment of conviction incidentally contains the notation 4th offense The return made by the court below does not state any facts which clarify the record. The record justifies the conclusion that the defendant was not charged as a second offender and that he was not accorded a hearing on that question, but that the City Judge, possibly relying upon his own information or on the records of his court, concluded that' the defendant was a fourth offender and imposed sentence accordingly.

There is no procedure prescribed in part V of the Code of Criminal Procedure relating to Courts of Special Sessions whereby a second offender can be charged as such after his conviction. Section 1943 of the Penal. Law relating to the sentence and conviction of a second felony does not apply to Courts of Special Sessions. It is, therefore, thought that one cannot be convicted in a Court of Special Sessions as a second offender unless the information contains appropriate allegations as to the prior convictions. It is recognized, however, that a contrary conclusion was reached in People v. Robarge (142 Mise. 457).

In this case, however, neither in the original information nor in the proceedings following the conviction was any information filed to charge the defendant as a second offender. The judgment convicts the defendant of only one of the two counts specified in the information. It follows that under section 1275 of the Penal Law, the maximum fine is $50.

An order may he entered modifying the judgment of conviction and reducing the fine to $50.  