People v. Westfall

6 A.D.2d 732, 174 N.Y.S.2d 339, 1958 N.Y. App. Div. LEXIS 5802

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1958
• Status: Published

Opinion

Appeal by two defendants from convictions as youthful offenders after a trial before the County Judge of Tompkins County. In company with some other defendants the appellants herein were convicted as youthful offenders, after indictment and trial before the County Judge of Tompkins County, for the crime of unlawful assembly as defined by section 2092 of the Penal Law. The appellant Schmidt was given a suspended sentence and placed on probation. Appellant Sundquist was sentenced to the Reception Center at Elmira Reformatory for a term of not exceeding three years, to be there dealt with according to law. As we read the record appellants had a perfectly fair trial. There is abundant evidence to sustain the charge that they, in company with several other defendants, unlawfully assembled with the intent to assault two State troopers, who were in plain clothes and who had been watching all of the defendants while they were swimming in a pool near Ithaca, New York. The defense amounted in reality to nothing more than the claim that the appellants, and other defendants, thought the troopers were “queers” (homosexuals) or “hot dogs” (college students). This, of course, was not sufficient to excuse or condone their offense. We find no prejudicial errors in the record, and we have also examined the probation reports as to the record and background of each of the appellants, and it does not appear, either from the record or from the probation reports, that the sentences were illegal or excessive. Judgment of conviction unanimously affirmed as to each of the appellants. Present—Poster, P. J., Bergan, Coon, Herlihy and Reynolds, JJ.