People ex rel. Hollick v. McMann

Appellate Division of the Supreme Court of New York

People ex rel. Hollick v. McMann

25 A.D.2d 789, 269 N.Y.S.2d 219, 1966 N.Y. App. Div. LEXIS 4377

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 29, 1966

StatusPublished

This text of 25 A.D.2d 789 (People ex rel. Hollick v. McMann) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Hollick v. McMann, 25 A.D.2d 789, 269 N.Y.S.2d 219, 1966 N.Y. App. Div. LEXIS 4377 (N.Y. Ct. App. 1966).

Pincite

Opinion

Per Curiam.

Appeal from an order of the Supreme Court, entered in Clinton County, which dismissed a writ of habeas corpus, after a hearing. Relator [790]*790was convicted in the County Court of Dutchess County upon eaeh of three counts of an indictment charging (1) attempted sodomy in the first degree, (2) assault in the second degree, committed by feloniously assaulting a female nine years of age “ with intent to commit upon [her] the crime of attempted sodomy in the first degree, (being the same transaction set forth and referred to in the First Count of this Indictment) ” and (3) the misdemeanor of endangering the life or health of a child. For all of these crimes the court imposed a single sentence of imprisonment for an indeterminate term, the minimum thereof to be one day and the maximum the duration of the defendant’s natural life. Such punishment is specifically authorized for sodomy in the first degree (Penal Law, § 690, subd. 5) or upon conviction of “assault in the second degree for an assault upon another with intent to commit the felony of * * * sodomy in the first degree” (Penal Law, § 243); but not for the “attempted sodomy” or the assault “with intent to commit * * * attempted sodomy” or, of course, the misdemeanor, of which relator was convicted. The writ was issued upon a petition captioned “ Motion for Resentence and New Trial” and requests an order vacating the judgment of conviction “ insofar as it imposes an illegal sentence ”. We consider that the issue of excessive sentence was sufficiently tendered and find it established. We decide no other question. Judgment reversed, on the law, without costs, and writ sustained, and relator remanded to the County Court of Dutchess County for resentence.

Gibson, P. J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.

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Per Curiam.

Appeal from an order of the Supreme Court, entered in Clinton County, which dismissed a writ of habeas corpus, after a hearing. Relator [790]*790was convicted in the County Court of Dutchess County upon eaeh of three counts of an indictment charging (1) attempted sodomy in the first degree, (2) assault in the second degree, committed by feloniously assaulting a female nine years of age “ with intent to commit upon [her] the crime of attempted sodomy in the first degree, (being the same transaction set forth and referred to in the First Count of this Indictment) ” and (3) the misdemeanor of endangering the life or health of a child. For all of these crimes the court imposed a single sentence of imprisonment for an indeterminate term, the minimum thereof to be one day and the maximum the duration of the defendant’s natural life. Such punishment is specifically authorized for sodomy in the first degree (Penal Law, § 690, subd. 5) or upon conviction of “assault in the second degree for an assault upon another with intent to commit the felony of * * * sodomy in the first degree” (Penal Law, § 243); but not for the “attempted sodomy” or the assault “with intent to commit * * * attempted sodomy” or, of course, the misdemeanor, of which relator was convicted. The writ was issued upon a petition captioned “ Motion for Resentence and New Trial” and requests an order vacating the judgment of conviction “ insofar as it imposes an illegal sentence ”. We consider that the issue of excessive sentence was sufficiently tendered and find it established. We decide no other question. Judgment reversed, on the law, without costs, and writ sustained, and relator remanded to the County Court of Dutchess County for resentence.

Gibson, P. J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.

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Bluebook (online)

25 A.D.2d 789, 269 N.Y.S.2d 219, 1966 N.Y. App. Div. LEXIS 4377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-hollick-v-mcmann-nyappdiv-1966.