COURT CLERK JAY: Therefore, the Court declares you to be a multiple narcotic offender. Are you ready for sentence?

MR. LEVINE: Yes, Your Honor.

THE DEFENDANT: Yes, sir.

COURT CLERK JAY: William Shellnut, is there any legal cause why sentence should not be pronounced?

MR. LEVINE: No legal cause at present.

COURT CLERK JAY:

What have you now to say before judgment is so pronounced on you according to law?

MR. LEVINE: Your Honor, this defendant I'm sure you have a full probation report. He's thirty-one years of age, married, with three children. However, he's been an addict since he was in his teens, going back to 1951, I believe. He's tried many times to get off the drug but, as you know, Judge, it's a very very difficult thing. He pleaded guilty, Your Honor, to an attempt under Section 1751 and he throws himself upon the mercy of the Court.

THE COURT: Very frankly, looking at this man's record, I feel that it would be more suitable if he went to a hospital instead of a prison. However, unfortunately, we don't have facilities for people of this type, and maybe if the man made some effort to help himself he may be able to do something about this habit while in jail. It's true he was indicted for selling, but I find that the selling was only

9

incidental to using. Apparently, the only
amount sold was eight dollars' worth and four
dollars' worth. Apparently, from the proba-
tion report, these sales were made just for
the purpose of enabling him to obtain narcotics
for his own personal use, but since I don't
consider him actually a seller because if I
did, I'll be very frank with you, I'd give him
the limit and he'd probably not be permitted by
the District Attorney to plead to the lesser
charge.

I'll sentence this defendant, William Shellnut, to a term of prison of not less than two years and six months and no more than five years."

The Judgment of Conviction and Commitment dated February 11, 1966 reads in part as follows:

"Whereupon it is Ordered and Adjudged by
the Court that the said defendant (he not
having been heretofore convicted of a felony)
for the Felony aforesaid, whereof he is con-
victed, be imprisoned in the State Prison *****"'

Thereafter, the defendant-appellant

forwarded his notice of appeal addressed to the Chief Clerk of the Bronx Supreme Court which was filed on February 17, 1966. In part, it states as follows:

"On February 11, 1966, I was sentenced

to Sing Sing State Prison, ***** after my plea
of guilty to violation of Section 1751 Sub-
division 3 and 3305 of the New York State Penal
Law *****!!

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The undersigned respectfully points out that

defendant-appellant states in his notice of appeal

***** after my plea of guilty to violation of Section 1751 Subdivision 3 *****," whereas all the Court

records and the minutes both on plea and on sentence show a plea of guilty to attempted violation of Subdivision 1 of Section 1751, on which plea of guilt, defendant-appellant was sentenced.

OPINION BELOW

No opinion was rendered by Mr. Justice

Joseph A. Brust in the Court below.

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