People ex rel. Frankel v. Brophy

255 A.D. 822, 7 N.Y.S.2d 33, 1938 N.Y. App. Div. LEXIS 5431

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 1938
• Status: Published

Opinion

— -Order affirmed, without costs. Memorandum: The return in a habeas corpus proceeding discloses that in 1926 the relator was found guilty of attempted robbery in the first degree under an indictment winch charged that, while acting in concert with others “ with force and arms,” and they “ being then and there armed with a dangerous weapon, to wit, with a certain pistol then and there charged and loaded with gun powder and one leaden bullet,” he feloniously committed an attempt to rob a person therein named. Having thereafter received a State's prison sentence of from seventeen and one-half to thirty-five years, which he is now serving, the relator challenges the legality of such sentence and asserts that upon the trial at which he was convicted there was no evidence produced to establish that he was armed with a dangerous weaponVhen the attempted robbery was committed. As he has failed to supply us with the record of proof taken upon the trial, we must assume from facts set forth in the return before us that there was proof on the trial which satisfied the sentencing court that at the time the crime was committed the relator was himself armed with a dangerous weapon. We, therefore, conclude that the sentence imposed upon the relator finds legal sanction in the Penal Law (§ 2125, as amd. by Laws of 1926, chap. 436; §§ 2191, 261 and 1944). All concur. (The order dismisses a writ of habeas corpus and remands relator into custody.) Present — Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ.