People ex rel. Fiannaca v. Hunt

257 A.D. 910, 12 N.Y.S.2d 113, 1939 N.Y. App. Div. LEXIS 8356

Opinion

Order affirmed, without costs. Memorandum: The mandatory imposition of an additional term of imprisonment upon the defendant for being armed with a dangerous weapon after the defendant had pleaded guilty to the crime of attempt to commit robbery in the first degree by attempting to take personal property from the presence of its owner with three accomplices and the use of two revolvers as provided in section 1944 of the Penal Law as it existed in 1934 is not violative of section 6 of article 1 of the Constitution of the State of New York relating to double jeopardy. The provisions of section 1944 relate to punishment only. The matter of being armed is not by section 1944 made a part of the crime. (People v. Krennen, 264 N. Y. 108, 110.) The increased term of imprisonment is in this respect analogous to the increased penalty which is provided by section 1941 of the Penal Law in relation to second offenders. Section 1941 has been definitely determined to be constitutional. (People v. Gowasky, 244 N. Y. 451.) All concur. (The order dismisses a writ of habeas corpus and remands relator into custody.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Dowling, JJ.