People ex rel. Swindell v. Wilson ( 1939 )

— Appeal from an order of the County Court of Washington county, made on the 29th day of April, 1938, and entered in the office of the clerk of Washington county on the same day, dismissing appellant’s writ of habeas corpus and remanding him to the custody of the warden of Great Meadow Prison. Appellant was convicted upon his plea of guilty of the crime of “ robbery second degree (armed with a pistol) ” and sentenced “ for the term the minimum of which shall not be less than six (6) years and the maximum of which shall not be more than twelve (12) years; not less than five (5) years, nor more than ten (10) years of said term being imposed by the court as increased punishment as provided by section 1944 of the Penal Law.” He was paroled on January 26, 1935, declared delinquent on February 1, 1936, and returned to prison for parole violation on May 8, 1936, owing six years eleven months and five days delinquent time. His maximum sentence will expire April 13, 1943. Appellant claims that his sentence was in fact two separate and distinct sentences, the first a term of not less than one nor more than two years under section 2127 of the Penal Law and the second a term of not less than five nor more than ten years. This, he says, was contrary to statute and a violation of his constitutional rights. A portion of the commitment is quoted above and shows that there was but one sentence and his claim is contrary to the actual facts. Appellant also urges that being armed is an essential element of the crime 'of robbery in the second degree and, therefore, the punishment for that offense may not be increased under section 1944 of the Penal Law. Robbery in the second degree does not necessarily involve the use of a weapon. (Penal Law; § 2126; People v. Kevlon, 221 App. Div. 224; appeal dismissed, 247 N. Y. 192.) Order unanimously affirmed. Present — Hill, P. J., Rhodes, Crapser, Bliss and Heffernan, JJ. i >