The People of the State of New York ex rel. Joseph Silva, Appellant, v. Walter H. Wilkins, as Warden of Attica Prison, Respondent, 21 A.D.2d 736

Order unanimously affirmed, without costs of this appeal to either party. Memorandum: The second count of the indictment herein charged defendant with feloniously possessing one eighth of an ounce of a substance containing 1% and more of the alkaloid heroin. Appellant plead guilty to an attempt to commit this crime and following other proceedures, here immaterial, was sentenced as a second felony offender to a term of not less than 9 nor more than 10 years. The crime charged in the second count, although not so denominated in the indictment, was obviously an alleged violation of subdivision 3 of

section 1751 of the Penal Law. This subdivision (unlike subd. 2 of the same section) relates to possession or control in the absence of any proof of intent to sell. A violation of subdivision 3 provides a penalty of 3 to 10 years. Subdivision 5 of the same

section provides that a conviction of an attempt to commit any of the crimes set forth in the

section is punishable by a term of not less than half the minimum or more than half the maximum. Conviction of an attempt to commit the crime described in subdivision 3 would permit a sentence of not less than one and one half nor more than five years. Upon sentence of appellant as a second offender (Penal Law, § 1941) the permissible maximum sentence would have been not less than two and one-half years or more than 10 years.

The sentence imposed (9 to 10 years) was within such permissible limits. (Appeal from order of Wyoming County Court dismissing, following a hearing, writ of habeas corpus and remanding relator to custody of Warden of Attica Prison.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecehio, JJ.