People v. Blumenthal

283 A.D. 784, 128 N.Y.S.2d 735

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 1954
• Status: Published

Opinion

Per Curiam.

No substantial evidence supports the conviction of defendant-on the third count of the information which charges the carrying of a dangerous weapon “with intent to use the same unlawfully against another”.

There is adequate proof in support of the other two counts each based on the same act of having had the weapon on his person. The weapon referred to was an unloaded gun.

Defendant had no prior arrest or conviction; had a creditable war record; was wounded in action and received the Purple Heart and a distinguished service award; is married with two children; and earns $125 a week as a salesman.

Twenty months intervened between his arrest August 31, 1951, and his trial and conviction April 7, 1953. He was sentenced to thirty days in the workhouse on an adjudication of guilty on all counts. He served eight days of the sentence before his release by the Special Term on a certificate of reasonable doubt.

The elimination of the third count of the information reduces the gravity of the conviction and leads to a somewhat different evaluation of punishment, considered also in the light of the very long period in which the charge was pending undetermined.

Judgment should be modified by dismissing the third count of the information and by reducing the unserved portion of the sentence ,to the time already served, and as thus modified, affirmed.

Peck, P. J., Callahan, Breitel, Bastow and Bergan, JJ., concur.

Judgment unanimously modified by dismissing the third count of the information and by reducing the unserved portion of the sentence to the time already served and, as so modified, affirmed.