People ex rel. Hornbeck v. Jackson

6 A.D.2d 924, 175 N.Y.S.2d 769, 1958 N.Y. App. Div. LEXIS 5238

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 1958
• Status: Published

Opinion

Appeal from an order of the County Court, Clinton County, which dismissed a writ of habeas corpus. Appellant was convicted on February 28,1951 in Suffolk County Court on his plea of guilty of sodomy, second degree, attempted rape, second degree, and attempted sodomy, second degree. The indictment under which the convictions were had on the plea charged all three crimes in the first degree and all three on the same day, July 10, 1950. The sentence of the court was 5 to 10 years each on the attempted rape and the attempted sodomy, to run consecutively; and 10 to 20 years on the sodomy count, to run concurrently with the other two. Appellant argued that there was a merger of the sodomy with the attempt to commit sodomy; and he seems to argue that the attempt to commit rape is inconsistent with the sodomy counts. He has proceeded by writ of habeas corpus in the County Court of Clinton Comity and the writ has been dismissed. We think the dismissal is proper. The question tested in habeas corpus is the jurisdiction of the court. On the face of the indictment here considered three separate crimes were charged committed the same day. There is no allegation that they were any part of a single act or a related series of acts. The court had jurisdiction over the offenses and over the relator. If there had been a merger of the sodomy and the attempt to commit sodomy, relief for such a situation is to be obtained by application to the court in which the judgment was entered. It is not a jurisdictional defect to be tested by the writ of habeas corpus. Order affirmed, without costs. Bergan, J. P., Gibson, Herlihy and Reynolds, JJ., concur.