People v. Kondrk , 9 A.D.2d 987 ( 1959 )

The defendant appeals from an order of Chemung County Court, dated August 27, 1958, which granted relief, in part, by setting aside two counts of the indictment to which defendant pied guilty in 1932 but in other respects denied the application. Defendant was indicted by the Chemung County Grand Jury in September, 1932, for the theft of an automobile on four counts (1) grand larceny, second degree (2) burglary, second degree (3) criminally receiving stolen property and (4) concealing and withholding stolen property. Thereafter in October of the same year, represented by counsel, he entered a plea to the indictment and was sentenced to a New York State Reformatory. The defendant now contends that the counts in the indictment were inconsistent and that therefore his application to vacate, set aside and annul the conviction should have been granted. Upon return of the writ the defendant appeared in person and by assigned counsel and after argument, the court, in denying the application, nevertheless directed that the judgment convicting the defendant of criminally receiving stolen property and concealing and withholding stolen property be set aside and vacated. Both litigants in their briefs referred to People v. Daghita, (301 1ST. Y. 223) where on an appeal from an original judgment of conviction the court determined that while the defendant might be indicted for the crimes of larceny and concealing and withholding, the jury must determine his guilt of one or the other. Accordingly, the judgment was modified by sustaining the conviction as to larceny but reversing as to criminally receiving. The defendant, by writ of habeas corpus, has previously tested the same identical issue. The Court of Appeals in its opinion sets forth the facts in considerable detail and determined that habeas corpus was the proper remedy but denied the writ as no objection had been raised by defendant or counsel at the time of sentencing. (People ex rel. ICondrk v. Foster, 299 N. Y. 329.) In affirming the determination of the lower court, we note that on this appeal the People did not question the right or authority of the defendant to seek relief by way of a writ of error coram nobis. Order unanimously affirmed. Present — Foster, P. J., Bergan, Coon, Herlihy and Reynolds, JJ. Mr. Henderson G. Riggs of Elmira, New York, was assigned by this court to represent the defendant on this appeal. The record and brief prepared by him and his argument before the court exemplify his diligence and interest in behalf of his client.