People v. Griffin

8 A.D.2d 983, 191 N.Y.S.2d 149, 1959 N.Y. App. Div. LEXIS 7518

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 28, 1959
• Status: Published

Opinion

Appeal from an order (as limited by appellant’s brief) of the County Court, Kings County, denying, without a hearing, an application in the nature of a writ of error coram nobis to vacate a judgment of conviction rendered by said court on October 9, 1956, sentencing appellant to serve from 1 year, 3 months to 2 years, 6 months, after he had pleaded guilty to attempted assault in the second degree, and in addition to serve from 5 to 10 years pursuant to section 1944 of the Penal Law for being armed.with a dangerous weapon. Order affirmed. No opinion. Nolan, P. J., Beldock and Kleinfeld, JJ., concur; Murphy, J., dissents and votes to reverse the order and to remit the application to the County Court, Kings County, for further proceedings as indicated herein, with the following memorandum: Appellant was indicted for assault in the second degree, while armed (two counts). At the recommendation of the Assistant District Attorney, his plea to attempted assault in the second degree “to cover all counts of the indictment” was accepted by the court. Thereafter, however, he was sentenced to serve from 1 year. 3 months to 2 years, 6 months for attempted assault and, in addition, to serve from 5 to 10 years “ for being armed ”. Although the record does not support any express promise, it may be clearly implied that a promise was, in fact, made and that appellant’s sentence to the additional term for being armed was unjustified, however inadvertent on the part of the court. While it is true that appellant’s past record is not a savory one, nevertheless that fact should not be considered. Hallinan, J., not voting.