People ex rel. Poster v. Jackson , 278 A.D. 734 ( 1951 )

Appeals from orders of the Supreme Court, made at Special Term, Clinton County, which sustained a writ of habeas corpus issued on behalf of relator and directed his return to the County Court of Kings Comity for resentence. In that court, on October 28, 1943, relator pleaded guilty to certain charges in an indictment, one of which accused him of the crime of incest and another of the crime of sodomy, each being separately charged as having been committed on the same calendar day. Separate and different sentences were imposed upon relator’s conviction of said crimes, and they were directed to be served consecutively. Relator contends that this was in violation of section 1938 of the Penal Law, in that his plea of guilty rendered his conviction one for a single criminal act made differently punishable by different provisions of law. We do not agree. The aforesaid offenses constitute different crimes the commission of which require separate and different criminal acts. Their gravamen is different in law and in fact. Their nature and definition is such that they cannot merge in a single offense. The sentences were lawfully imposed. (Penal Law, § 2190, subd. 4.) Orders reversed on the law and facts and relator remanded to the custody of the Warden of Clinton Prison. Foster, P. J., Heffernan, Brewster, Bergan and Coon, JJ., concur.