People ex rel. Long v. Director of the Elmira Reception Center

6 A.D.2d 946, 176 N.Y.S.2d 76, 1958 N.Y. App. Div. LEXIS 5270

• 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 Supreme Court, Albany County, dismissing a writ of certiorari. Relator-appellant was indicted by a Grand Jury in Albany County for the crime of robbery in the first degree in violation of subdivisions 2 and 4 of section 2124 of the Penal Law. Upon trial he was found guilty by the jury of the crime of robbery in the third degree. It is contended that relator could not be found guilty and convicted of the crime of robbery in the third degree because the statutory definition of that crime excludes robbery in the first or second degree. It is strenuously argued that relator’s conviction of robbery in the third degree is the equivalent of acquittal. The writ upon which this matter was heard is the equivalent of a writ of habeas corpus except that the physical production of the prisoner is not required. There seems no question about the jurisdiction of the court of both the crime and the relator. Under such circumstances the matter may not be reviewed by a writ of certiorari or a writ of habeas corpus (Matter of Morhouse v. New York Supreme Court, 293 N. Y. 131; People ex rel. Sedlak v. Foster, 299 N. Y. 291; People ex rel. Naumo v. Jackson, 1 A D 2d 743, appeal dismissed 1 N Y 2d 853; People ex rel. Lee v. Jackson, 285 App. Div. 33, affd. 309 N. Y. 676). Upon the oral argument it was stated that an appeal has been taken from the judgment of conviction, and upon that appeal the question may be adequately reviewed. Order affirmed. Bergan, J. P., Gibson, Herlihy and Reynolds, JJ., concur.