People ex rel. Liotta v. Morhous

283 A.D. 836, 128 N.Y.S.2d 737, 1954 N.Y. App. Div. LEXIS 5458

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 1954
• Status: Published

Opinion

— Appeal from an order of the Special Term of the Supreme Court, Washington County. Appellant was convicted of robbery, first degree; grand larceny, first degree and assault, second degree in Kings County. He is presently committed to Great Meadows prison. The indictment for robbery in the first degree pleads the theory of accomplice actually present to constitute the degree of the crime (Penal Law, § 2124, subd. 2) by alleging that this appellant and a codefendant, one De Simone, were actually present “ each aiding the other ” in the commission of the crime. The court severed the indictment as to the two defendants, and although appellant was convicted, the codefendant was discharged. He seeks to review his conviction by habeas corpus. The County Court had jurisdiction to enter the judgment and impose the sentence. That is the limit of inquiry in habeas corpus. Appellant argues that his conviction “ is contrary to fact and law ”. But that is quite a different thing from a failure of jurisdiction. We do not pass upon the question whether it was error to enter a conviction based in part upon an accomplice actually present and at the same time discharge the accomplice. Such a question would have been available on direct appeal from the judgment. We are of the opinion the question is not available here and the order should be affirmed. Order unanimously affirmed. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.