People ex rel. White v. McMann

8 A.D.2d 921, 187 N.Y.S.2d 199, 1959 N.Y. App. Div. LEXIS 8026

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1959
• Status: Published

Opinion

Appeal from an order of County Court, Clinton County which denied a petition for a writ of habeas corpus. On July 31, 1944 relator was indicted in New York County on six counts involving robbery and assault. Three of them related to crimes on July 14 against May Wilson; three to crimes on July 15 against Helen Hearmes. In the course of trial November 17, 1944, the first three counts (Hearmes, July 15) were severed and relator pleaded guilty to the fourth count, robbery, second degree, against May Wilson on July 14, “to cover all counts in the indictment”. A sentence was imposed on February 9, 1945 as a second offender which was later vacated on a finding he had not been theretofore convicted of a felony, and on June 4, 1946 he was resentenced as a first offender. The commitment recites that the conviction on which the sentence was based is “ robbery in the second degree committed July 15, 1944 ”. The actual date of the crime stated in the specific counts to which he pleaded guilty was July 14, 1944. This variance in date is not a jurisdictional defect. Unless the date itself is an essential ingredient of the crime it is not vital to the sufficiency of an indictment (Code Grim. Pro., § 280) or to a plea or judgment thereon. Order unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Gibson and Reynolds, JJ.