This case involves the People of the State of New York versus the defendant Richard DeMarco a/k/a Richard Machado. The case is being heard in the Queens County Court. Judge John F. Scileppi is residing over the case.
The defendant of the case has moved for a writ of error and motions for an order to correct his sentence. He has three separate arguments for this relief.
The first argument in the case made by the defendant is the fact that at the time he was sentenced for this indictment he was a first time felony offender but sentenced as a second felony offender. For this reason he should not have been given the additional punishment in the matter.
The second argument made by the defendant is that the offense that occurred out of state as described was not a legal fact that would constitute a felony charge in the state of New York. The out of state offense is what formed the basis of his sentencing as a second felony offender.
The final argument of the defendant is that the judge who sentenced him considered the contents of his probation report, which was not accurate, and this influenced the judge when determining the sentence.
The defendant was indicted on the 23rd of September, 1959 for crimes of sodomy, assault, carnal abuse of a child, and violating section 483 of the penal law. On the 19th of February, 1960, the defendant withdrew his not guilty plea and pleaded guilty to the crime of Assault in the second degree to cover all of the counts of the indictment.
On the 24th of February, 1960, the District Attorney filed information regarding a prior offense where the defendant had been convicted of a felony in the Superior Court in the State of California in Los Angeles County.
On the first of March, 1960, the defendant admitted to this prior offense that was committed in the state of California. The defendant appeared before the court on the tenth of June, 1960 and was sentenced as a second felony offender and was given nine years in prison and no more than ten years in prison.
Court Discussion and Decision
The District Attorney has opposed the motion made by the defendant on all counts. The argument is that the motion is without merit and factual basis.
Before considering the merit of the motion the court first points out that the defendant is actually seeking to be resentenced as a first time felony offender and the motion is not a writ of coram nobis to correct his sentence.
When considering the first argument of the defendant, it is found to be without merit. The felony committed in California is valid for use in sentencing procedures in New York and does raise the defendant to a second felony criminal.
The other arguments made by the defendant are also without merit. After further studying the case the court rules in favor of the people and the motion made by the defendant is dismissed on all counts and the original order and sentencing is confirmed.
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