Defendant was indicted for burglary in the third degree as a “ second offense ” and attempted grand larceny in the second degree as a “ second offense.” The charge in the indictment that the defendant is a “ second offender ” is a part of the body of the crime and must be alleged in the indictment and proved on the trial. (People v. Sickles, 26 App. Div. 470; affd., 156 N. Y. 541. See, also, People v. Rosen, 208 N. Y. 169.) When the defendant was arraigned for pleading, he pleaded guilty to burglary in the third degree as a “ first offender.” Although at the time of pleading he admitted he was a “ second offender,” his plea of guilt as a “ first offender ” was accepted. A conviction after plea of guilt has the same binding force and effect as a trial of the charge under an indictment, and thus a conviction as a “ first offender ” is a bar to a further sentence under section 1943 of the Penal Law (as added by Laws of 1926, chap, 457). It might be said that, under the circumstances, the *182indictment was in effect amended by omitting the allegation of “ second offense ” and that the plea of guilt was to the charge in the indictment as thus amended. But the court, with full knowledge that defendant was a “ second offender,” accepted a plea of guilt as a “ first offender.” The purpose of this undoubtedly was to avoid the consequences to defendant of section 1943 of the Penal Law. Having proceeded upon this basis, the determination that defendant is a “ first offender ” is a bar to a further sentence, as provided in section 1943 of the Penal Law. The language of section 1943 does not require a different holding. Since the only question considered is whether or not defendant should receive a further sentence under section 1943 of the Penal Law, the motion should have been denied.
Peremptory mandamus order affirmed.