People ex rel. McCue v. Martin

261 A.D. 868, 24 N.Y.S.2d 826, 1941 N.Y. App. Div. LEXIS 7829

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 1941
• Status: Published

Opinion

Appeal from an order, entered in the Clinton county clerk’s office on August 7, 1940, dismissing a writ of habeas corpus. Appellant was jointly indicted with another for the crimes of assault in the first degree and assault in the second degree committed while armed with a pistol. He pleaded guilty to assault in the second degree while armed; and the charge of first degree assault was dismissed. The court imposed a sentence of ten years’ imprisonment, five years of which were imposed as increased punishment for being armed. (Penal Law, § 1944.) Appellant now seeks to raise the issue that he was not armed, and offers proof in support thereof. Such an issue of fact may not be reviewed by habeas corpus. Since appellant pleaded guilty to an indictment specifically charging him with being armed no additional hearing was necessary. Order dismissing writ of habeas corpus unanimously affirmed, without costs. Present — Hill, P. J., Bliss, Heffeman, Schenck and Foster, JJ.