People ex rel. Lesser v. Murphy

249 A.D. 669, 291 N.Y.S. 370, 1936 N.Y. App. Div. LEXIS 5461

Opinion

This is an appeal from an order of the Clinton County Court dated February 21, 1935, dismissing a writ of habeas corpus obtained on behalf of the relator appellant and remanding him to Clinton Prison. The relator appellant was convicted in the Court of General Sessions of the County of New York of the crime of kidnapping which was proven to be his third felony conviction. His complaint is that at the time he appeared for sentence the trial court granted a motion made by his counsel to set aside the verdict of guilty and for a new trial and that he has not been given such new trial. The stenographer’s minutes show that relator’s counsel moved both to set aside the verdict and for a new trial and that all the objections made by any defendant (apparently relator had been tried jointly with other defendants) inure to the benefit of this defendant. The court stated, “ I grant that motion,” meaning apparently that this defendant might have the benefit of objections made by the other defendants because the court immediately thereafter stated that it was denying the motions for a new trial and then proceeded to pass sentence. The relator appellant places an erroneous construction upon the statements by the trial court. Order unanimously affirmed. Present — Hill, P. J., McNamee, Crapser, Bliss and Heffernan, -JJ.