People ex rel. Roberts v. Thomas

Order entered April 30, 1968 which dismissed appellant’s writ of habeas corpus, reversed, on the law, the writ sustained, and defendant is discharged. In the circumstances of this case, consecutive sentences were impermissible. People ex rel. Maurer v. Jackson, (2 N Y 2d 259, 264) is in point. The Court of Appeals in that case stated: “It is also not open to dispute that if there were merely a single inseparable act violative of more than one statute, or if there were an act which itself violated one statute and was a material element of the violation of another, there would have to be single punishment ”. In the instant case there was an act which violated one statute and was a material element of the violation of another, hence consecutive sentences were improper. (See, also, People v. Hutchinson, 276 App. Div. 1040.) In view of the concession in the brief of respondent that the facts set forth in the opinion of the court below are accurate and relied on, there is no necessity for any further record. Since relator has completed service of the first one-year sentence, he is now being detained under a sentence the court had no power to impose and is entitled to release. (See People ex rel. Thornwell v. Heacox, 231 App. Div. 617.) Concur — Steuer, Rabin and McNally, JJ.; Botein, P. J., dissents and votes to affirm and Tilzer, J., dissents and votes to affirm in the following memorandum: