People v. Birmingham

212 N.E.2d 780, 16 N.Y.2d 984, 265 N.Y.S.2d 295, 1965 N.Y. LEXIS 1053

Opinion

Judgment modified and matter remitted to the Supreme Court, Richmond County, so as to provide for the imposition of a sentence to run concurrently instead of consecutively and, as so modified, affirmed. (Penal Law, § 1938.) No opinion.

Concur: Chief Judge Desmond and Judges Fuld, Van Voorhis, Burke and Bergan. Judges Dye and Scileppi dissent and vote to affirm. (See People ex rel. Maurer v. Jackson, 2 N Y 2d 259; People v. Erickson, 302 N. Y. 461; cf. People v. Di Lapo, 14 N Y 2d 170.) The consecutive sentence was permissible under section 1938 of the Penal Law.