People ex rel. LaTassa v. Martin , 36 N.Y.S.2d 30 ( 1942 )

Relator-appellant appeals from an order of the Clinton County Court entered in the clerk’s office on the 13th day of January, 1942, dismissing a writ of habeas corpus and remanding the prisoner to the custody of the warden of Clinton Prison. Relator was indicted for the crime of murder in the first degree and upon a trial in the County Court of Albany County he was convicted of manslaughter in the first degree. The indictment charged that on the 14th day of February, 1931, at the city of Albany, defendant LaTassa, the relator-appellant here, killed one James Germano by shooting him in the body several times with a revolver loaded with bullets. He was sentenced to Clinton Prison at Dannemora for the term of not less than fifteen years nor more than thirty years. The penalty prescribed by statute for the crime of manslaughter, first degree, as it existed at the time of the conviction and sentence, provided punishment by imprisonment for a term of not exceeding twenty years. (Penal Law, § 1051.) Defendant was a first offender and the minimum of an intermediate sentence could not be more than one-half of the longest period fixed by law, or ten years, and the maximum not more than the longest period, or twenty years. (Penal Law, § 2189.) When this crime was committed, it was mandatory under section 1944 of the Penal Law that the punishment be increased if defendant was armed at the time of the commission of the crime. That section prescribed an increased punishment of not less than five nor more than ten years. The county judge in sentencing the defendant stated to him that under the provisions of section 1944 of the Penal Law he would receive additional punishment and, pursuant to the statute, pronounced the indeterminate sentence of not less than fifteen years nor more than thirty years’ imprisonment. This sentence was proper, and the order appealed from should be affirmed. Order unanimously affirmed, without costs. Present — Hill, P. J., Bliss, Heffernan, Schenck and Foster, JJ.