People v. Fortino

236 A.D. 877

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1932
• Status: Published

Opinion

Judgment of conviction of the County Court of Washington county modified by making the period of the defendant’s imprisonment in State prison, Dannemora, N. Y., not less than eight years nor more than fifteen years, and as so modified affirmed; the defendant is remanded to the County Court for resentence accordingly. This modification is for error of law only. The additional sentence of five years was unauthorized inasmuch as the testimony, other than uncorroborated testimony of an accomplice, shows that the pistol was in the possession of and used by Louis Choppi in the commission of the crime, and was not possessed by this defendant or used by him in connection therewith. (People v. Paradiso, 248 N. Y. 123; People v. Kevlon, 221 App. Div. 224; People v. Hess, ante, p. 735.) Van Kirk, P. J., Hinman, Hill and Crapser, JJ., concur; Rhodes, J., dissents and votes to affirm on the ground there is sufficient competent evidence that at the time of the commission of the crime the defendant was armed with a pistol.