People ex rel. Dolac v. Foster

273 A.D. 937, 78 N.Y.S.2d 45, 1948 N.Y. App. Div. LEXIS 5341

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 1948
• Status: Published

Opinion

Order reversed on the law and facts, without costs of this appeal to any party, and writ dismissed. Memorandum: The sentencing court held that the respondent is legally held in custody as a second offender. The respondent has not appealed. The confession of respondent, in which he admitted that he was armed, was received in evidence on the trial and was not, so far as the record shows, challenged by the respondent. At the close of all the evidence but before the case was sent to the jury, the defendant-respondent pleaded guilty to robbery in the second degree. There was a reviewable record containing the confession and no further hearing was necessary for a finding that the respondent was armed under the rule in People v. Caruso (249 N. Y. 302). The additional sentence under section 1944 of the Penal Law was proper. All concur. (The order sustains a writ of habeas corpus insofar as the imposition of the additional term of five years is concerned and directs that relator be discharged from custody at the termination of his fifteen year sentence and that relator’s name be certified to the Governor.) Present — Taylor, P. J.,"Larkin, Love, Vaughan and Kimball, JJ.